at least equally competent, the engineer is | Court of Criminal Appeals of the State of denied the right to serve as conductor, and Texas for further proceedings not inconthe exclusive right of appointment and pro- sistent with this opinion. motion to that position is conferred upon Reversed. brakemen. 3. So that the case distinctly raises the question as to whether a statute, in permitting certain competent men to serve, can lay down a test which absolutely prohibits Mr. Justice Holmes dissents. other competent men from entering the DISTRICT OF COLUMBIA COURT OF same private employment. It would seem that to ask the question is to answer,and the answer in no way denies the right of the state to require examinations to test the fitness and capacity of brakemen, firemen, engineers, and conductors to enter upon a service fraught with so much of risk to themselves and to the public. But all men are entitled to the equal protection of the law in their right to work for the support of themselves and families. A statute which permits the brakeman to act, because he is presumptively competent, and prohibits the employment of engineers and all others who can affirmatively prove that they are likewise competent, is not confined to securing the public safety, but denies to many the liberty of contract granted to brakemen, and operates to establish rules of promotion in a private employment. If brakemen only are allowed the right of appointment to the position of conductors, then a privilege is given to them which is denied all other citizens of the United States. If the statute can fix the class from which conductors on freight trains shall be taken, another statute could limit the class from which brakemen and conductors on passenger trains could be selected, and so, progressively, the whole matter as to who could enter the railroad service, and who could go from one position to another, would be regulated by statute. In the nature of the case, promotion is a matter of private business management, and should be left to the carrier company, which, bound to serve the public, is held to the exercise of diligence in selecting competent men, and responsible in law for the acts of those who fill any of these positions. 4. There was evidence that Smith safely and properly operated the train which had in it cars containing freight destined for points in Texas, Missouri, Oklahoma, and Kansas. But in view of what has been said it is not necessary to consider whether the plaintiff, as engineer, was in a position to raise the point that, under the decision in the Adams Express Case (Barrett v. New York, 232 U. S. 14, 58 L. ed. 483, 34 Sup. Ct. Rep. 203) the statute interfered with interstate commerce. The judgment is reversed and the case remanded to the APPEALS. E ORROR to the Police Court of the District of Columbia to review a judgment convicting defendant of betting or gambling in violation of law. Affirmed. The facts are stated in the opinion. Messrs. Daniel W. Baker and Thomas C. Bradley, for plaintiff in error: The witnesses who testified against the defendant were accomplices. Yeager v. United States, 16 App. D. C. 361; Thompson v. United States, 30 App. D. C. 352, 12 Ann. Cas. 1004; 12 Cyc. 445; Stone v. State, 3 Tex. App. 675; Moses v. State, 58 Ala. 117; Davidson v. State, 33 Ala. 350; English v. State, 35 Ala. 428; State v. Light, 17 Or. 358, 21 Pac. 132, 8 Am. Crim. Rep. 326; Wright v. State, 23 Tex. App. 313, 5 S. W. 117. If the witnesses that testified against the plaintiff were accomplices, the court should have advised or cautioned the jury that they should not find the defendant guilty on the uncorroborated testimony of such accomplices. Reagan v. United States, 157 U. S. 301, 39 L. ed. 709, 15 Sup. Ct. Rep. 610; United States v. Neverson, 1 Mackey, 152; United States v. Bicksler, 1 Mackey, 341; State v. Light, 17 Or. 358, 21 Pac. 132, 8 Am. Crim. Rep. 326; State v. Stebbins, 29 Conn. 463, 79 Am. Dec. 223; State v. Woolard, 111 Mo. 248, 20 S. W. 27; State v. Jones, 64 Note. The question, Who is an accomplice in gambling within rule requiring corroboration of testimony, is considered in note to Hendrix v. State, 43 L.R.A. (N.S.) 546. Mo. 391; Hoyt v. People, 140 Ill. 588, 16 | police court of the District of Columbia. L.R.A. 239, 30 N. E. 315; 1 Greenl. Ev. § The information was filed against Porter 380; State v. Perry, 41 W. Va. 651, 24 S. L. Paylor, the plaintiff in error, charging E. 634; Ray v. State, 1 G. Greene, 323, 48 him with the violation of the provisions of Am. Dec. 379. § 869 of the District Code, as amended by the act of May 16, 1908 (35 Stat. at L. 164, chap. 172). The act, as amended, reads as Messrs. Clarence R. Wilson and Bolitha J. Laws, for the United States: The witnesses in this case were not ac- follows: "It shall be unlawful for any percomplices. 12 Cyc. 448; Com. v. Bossie, 100 Ky. 151, 37 S. W. 844; Day v. State, 27 Tex. App. 143, 11 S. W. 36; Stone v. State, 3 Tex. App. 675; Cain v. Com. 6 Ky. L. Rep. 517; Green v. Com. 6 Ky. L. Rep. 217; Truss v. State, 13 Lea, 311; Rountree v. State, 88 Ga. 457, 14 S. E. 712; Parsons v. State, 43 Ga. 197; Askea v. State, 75 Ga. 356; Wall v. State, 75 Ga. 474; Porter v. State, 76 Ga. 658. It is a matter wholly within the discretion of the trial court whether or not he will instruct the jury how to treat testimony of accomplices. son or association of persons to bet, gamble, or make books or pools on the result of any trotting or running race of horses, or boat race, or race of any kind, or on any election or any contest of any kind, or game of baseball. Any person or association of persons violating the provisions of this section shall be fined not exceeding $500 or be imprisoned not more than ninety days, or both." Defendant was convicted on five separate counts, in each of which the witness produced against him was the person with whom he was charged with having bet or gambled. The material error urged relates to the failure of the court to instruct the jury that it could not find the defendant guilty upon the uncorroborated testimony of an accomplice. We think it unnecessary to enter into any discussion of the rules of practice governing the admission of the testimony of accomplices, since we are of opinion that, where two persons wager on the result of an event, as in this instance a horse race, one is not the accomplice of the other. To establish the re must unite in a common purpose to do an unlawful act. When two persons wager on the result of a certain event, the purpose of each is diametrically opposed to that of the other. The object to be attained by each is the exact opposite of the other. It could be asserted with equal force that two persons engaged in fighting a duel are accomplices. While each is violating the same law, they are not engaged in a common purpose to kill a common antagonist, but in a distinct and separate purpose of killing each other. Reg. v. Stubbs, 33 Eng. L. & Eq. Rep. 552; Reg. v. Boyes, 1 Best & S. 311, 2 Fost. & F. 157, 30 L. J. Q. B. N. S. 301, 7 Jur. N. S. 1158, L. T. N. S. 147, 9 Week. Rep. 690, 9 Cox, C. C. 32; Com. v. Holmes, 127 Mass. 424, 34 Am. Rep. 391; Com. v. Wilson, 152 Mass. 12, 25 N. E. 16; Com. v. Clune, 162 Mass. 206, 38 N. E. 435; Com. v. Bishop, 165 Mass. 148, 42 N. E. 560; Com. v. Phelps, 192 Mass. 591, 78 N. E. 741; People v. Jenness, 5 Mich. 305;lation of accomplice, two or more persons People v. Schweitzer, 23 Mich. 301; People v. Wallin, 55 Mich. 497, 22 N. W. 15, 6 Am. Crim. Rep. 213; People v. Hare, 57 Mich. 505, 24 N. W. 843; People v. Dumas, 161 Mich. 45, 125 N. W. 766; Cheatham v. State, 67 Miss. 335, 19 Am. St. Rep. 310, 7 So. 204; State v. Hyer, 39 N. J. L. 598; State v. Rachman, 68 N. J. L. 120, 53 Atl. 1046; State v. Simon, 71 N. J. L. 142, 58 Atl. 107, affirmed in 59 Atl. 1118; Cross v. People, 47 Ill. 152, 95 Am. Dec. 474; Collins v. People, 98 Ill. 584, 38 Am. Rep. 105; State v. Haney, 19 N. C. (2 Dev. & B. L.) 390; State v. Green, 48 S. C. 136, 26 S. E. 234; State v. Sowell, 85 S. C. 278, 67 S. E. 316; State v. Potter, 42 Vt. 495; State v. Dana, 59 Vt. 614, 10 Atl. 727; State v. Kibling, 63 Vt. 636, 22 Atl. 613; State v. Hier, 78 Vt. 488, 63 Atl. 877; State v. Wolcott, 21 Conn. 272; State v. Carey, 76 Conn. 342, 56 Atl. 632; State v. Prudhomme, 25 La. Ann. 522; State v. Hauser, 112 La. 313, 36 So. 396; 3 Wigmore, Ev. § 2056; Rex v. Jones, 2 Campb. 131, 11 Revised Rep. 680. Mr. Ralph Given also for the United States. The weight of authority is to the effect that persons engaged in wagering contests are not accomplices. Com. v. Bossie, 100 Ky. 151, 37 S. W. 844. In Stone v. State, Tex. App. 675, the court, considering the exact question here presented, said: "We do not think the witness, Behman, is an accomplice. When several persons bet at a game of faro, pool, or monte, each is guilty of betting at a gaming table or bank exhibited for the purpose of gaming, not as principals and accomplices to each other, but as several, not joint, offenders. There is not that oneness of intent and oneness Mr. Justice Van Orsdel delivered the of offense between them to make them prinopinion of the court: cipals. No one of them is aiding or assist This case is here on writ of error to the ing another by acts or encouraging by words in the commission of the offense. Each acts independently for himself against the others, and without concert mediately or immediately with the other betters. An indictment charging them as joint, and not separate, offenders, would be bad. The parties to the game of pool may change, and yet it not affect the defendants. Each one, as he takes part in the game, and bets money on it, is guilty of a separate offense. If the position contended for by defendants is true, when two defendants en gaged in a fight with and against each other, a conviction cannot be had on the uncorroborated testimony of one of them." Inasmuch as this disposes of the other question presented, the judgment is affirmed. prosecutions would tend to injure or destroy the property of the person so prosecuted, or deprive him of the legitimate enjoyment of his property, equity will entertain a suit to inquire into the validity of the ordinance, and enjoin its enforcement. Constitutional law intermingling of races prohibition. 3. Sections 1 and 2 of the ordinance of the city of Atlanta adopted June 16, 1913, and the corresponding sections of an amendment thereto, adopted November 3, 1913, prohibiting white persons and colored persons from residing in the same block, deny the inherent right of a person to acquire, enjoy, and dispose of property, and for this reason are violative of the due process clause of the Federal and state Constitutions. E (February 12, 1915.) RROR to the Superior Court for Fulton County to review a judgment refusing to enjoin the enforcement of an ordinance requiring white persons and persons of color to reside in separate blocks. Reversed. The facts are stated in the opinion. Mr. George Westmoreland for plaintiffs in error. Messrs. J. L. Mayson and W. D. Ellis, for defendants in error: This is an effort to enjoin a criminal prosecution, which cannot be done. Starnes v. Atlanta, 139 Ga. 531, 77 S. E. 381; Neall v. Atlanta, 141 Ga. 31, 80 S. E. 284; Georgia R. & Electric Co. v. Oakland City, 129 Ga. 576, 59 S. E. 296; White v. Tifton, 129 Ga. 582, 59 S. E. 299; Rowland v. Road & Revenue Comrs. 133 Ga. 190, 65 S. E. 404; Jonesboro v. Central of Georgia R. Co. 134 Ga. 190, 67 S. E. 716; Shellman v. Saxon, 134 Ga. 29, 27 L.R.A. (N.S.) 452, 67 S. E. 438. The allegations of plaintiff's petition that the ordinance is a bad law and has worked injury to him are not sustained, and therefore the petition should be dismissed. Reid v. Eatonton, 80 Ga. 755, 6 S. E. 602; Cooley, Const. Lim. 5th ed. 197; Marshall v. Donovan, 10 Bush, 681; Sinclair v. Jackson, 8 Cow. 543; Smith v. L.R.A. (N.S.) 332, 81 S. E. 338, it was held that charter and statutory authority to pass ordinances for the general welfare of the city, and such regulations for the better government of the town as the commissioners may deem necessary, does not include power to forbid members of either the white or colored race to live in any block where a majority of the residents are of the other race. This decision it will be observed is in conflict with the holding in State v. Gurry, supra, and Ashland v. Coleman, 19 Va. L. Reg. 427, a Virginia lower court decision, which is set out in the note in 47 L.R.A. (N.S.) 1087. A. L. R. McCarty, 56 Pa. 359; Antoni v. Wright, 22 | colored person, purchased a lot and house Gratt. 857. The state has for many years put under the head of "police powers" the segregation of the races. The policy of the state having been fixed, the general walfare clause of the municipality can follow, and separate the races as in other instances. State v. Hyman, 98 Md. 596, 64 L.R.A. 637, 57 Atl. 6, 1 Ann. Cas. 742; Police Comrs. v. Wagner, 93 Md. 182, 52 L.R.A. 775, 86 Am. St. Rep. 423, 48 Atl. 455; Cochran v. Preston, 108 Md. 220, 23 L.R.A. (N.S.) 1163, 129 Am. St. Rep. 432, 70 Atl. 113, 15 Ann. Cas. 1048; District of Columbia v. Brooke, 214 U. S. 138, 53 L. ed. 941, 29 Sup. Ct. Rep. 560; Noble State Bank v. Haskell, 219 U. S. 104, 55 L. ed. 112, 32 L.R.A. (N.S.) 1062, 31 Sup. . Ct. Rep. 186; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 592, 50 L. ed. 609, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175; Crowley v. Christensen, 137 U. S. 86, 34 L. ed. 620, 11 Sup. Ct. Rep. 13; Slaughter-House Cases, 16 Wall. 62, 21 L. ed. 404; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; Jacobson v. Massachusetts, 197 U. S. 25, 49 L. ed. 649, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765; Cooley, Const. Law, § 251. In order to avoid disorder and violence and to continue the good feeling between the races, the courts encourage the enforce ment of valid and bona fide segregation laws. from a white person, in which the latter resided. The property was located in a block occupied by white and colored persons. A white person resided on a lot adjoining the one purchased as above mentioned. On December 9, 1913, the plaintiff above mentioned contracted to sell the lot at an advanced price to the other plaintiff, and executed a bond for title. The former white owner having moved out, the obligee in bond for title, who contemplated taking up his future residence in the house, caused the same to be temporarily rented to a colored person, and received one month's rent. When the tenant moved in, the white proprietor of the adjoining residence objected to the occupancy of the house by a colored person, and, upon notice from the chief of police that a case would be made against the tenant under the ordinance, the latter moved out, and the plaintiff was required to refund the money paid for rent. The plaintiff was also notified by the chief of police that the ordinance would be enforced against him or any other colored person who attempted to occupy the dwelling as a residence, upon objection being urged by the adjoining white proprietor. The particular parts of the ordinance complained of as being unconstitutional are §§ 1 and 2 of the original ordinance, and the corresponding sections of the amendment. These are alleged to be void, because they (a) deprive the plaintiffs of the use and enjoyment of their property, (b) deprive the plaintiffs of their property rights without due process of law, and (c) delegate to individuals the right to say how the plaintiffs shall use their property. By amendment to the petition it was charged that these provisions of the ordinance were void as being violative of article 1, § 1, Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, 16 Sup. Ct. Rep. 1138; Berea College v. Kentucky, 211 U. S. 45, 53 L. ed. 81, 29 Sup. Ct. Rep. 23; Louisville, N. O. & T. R. Co. v. Mississippi, 133 U. S. 587, 33 L. ed. 784, 2 Inters. Com. Rep. 801, 10 Sup.¶¶ 2 and 3, of the Constitution of this state Ct. Rep. 348. (Civil Code, §§ 6358, 6359), which declare that protection to person and property is Atkinson, J., delivered the opinion of the the paramount duty of government, and court: 1, 2. The rulings announced in the first and second headnotes do not require elaboration. shall be impartial and complete; and that "no person shall be deprived of life, Fiberty, or property, except by due process of law." The ordinance was also charged to 3. The assignment of error complained of be violative of the Constitution of the the judgment of the trial court refusing United States, as contained in the 14th to grant an interlocutory injunction. The Amendment (Civil Code, § 6700), which controlling question is as to the constitu- declares that "all persons born or naturaltionality of an ordinance of the city of At-ized in the United States, and subject to the lanta which provides for the segregation jurisdiction thereof, are citizens of the of residences, the design of the ordinance United States, and of the state wherein being to require white persons and persons of color to reside in separate blocks. It appears from the pleadings and evidence that the ordinance was adopted on June 16. 1913, and amended on November 3, 1913. On October 1, 1913, one of the plaintiffs, a they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection | streets, without reference to the street which of the laws." The ordinance in its entirety was as follows: "An ordinance for preserving peace, preventing conflict and ill feeling between the white and colored races, and promoting the general welfare of the city, by providing for the use of separate blocks by white and colored people for residences, and for other purposes. "Section 1. That from and after the approval of this ordinance it shall be unlawful for any white person to move into or use as a residence or place of abode any house, building, or structure, or any part of a house, building, or structure, situated or located on any block as hereinafter defined in § 4, on which block the house, building, or structures, in whole or in part, shall be occupied or used as residences or places of abode by colored persons, otherwise than as provided in § 3 hereof. The block into which white persons are herein forbidden to move or occupy, being occupied or used by colored persons as herein set forth, shall be deemed a 'Colored Block' for the purposes of this ordinance. "Section 2. That from and after the approval of this ordinance it shall be unlawful for any colored person to move into, or use as a residence or place of abode, any house, building, or structure, or any part of a house, building, or structure, situated or located on any block as hereinafter defined in § 4, on which block the houses, buildings, or structures shall be occupied or used as residences or places of abode by white persons, otherwise than as provided in § 3 hereof. The block into which colored persons are herein forbidden to move or occupy, being occupied by white persons as herein set forth, shall be deemed a 'White Block' for the purposes of this ordinance. "Section 3. That nothing in either of the preceding sections shall be construed or defined to prevent domestic servants from residing in the house or building wherein they are employed, or upon the same lots with the houses or buildings which they serve. runs to said block, but does not cross same. Corner lots, improved or unimproved, shall be deemed located in the block upon the street on which they front or are intended to front when improved. In using the word 'lots' in this section it is intended to include the houses on same where such lots are improved. "Section 5. That any person violating the provisions of §§ 1 or 2 of this ordinance shall, on conviction in the recorder's court, be deemed guilty of an offense and be punished by a fine not exceeding $100, or sentenced to work on the public works for not exceeding thirty days, either or both punishments to be inflicted in the discretion of the recorder, and each day's violation of the ordinance to be considered a separate offense. "Section 6. That, upon the approval of this ordinance, any person desiring to build or erect, for himself or as agent for another, any building or structure to be used as residence or place of abode upon property situated in any block, as defined in § 4 hereof, and within which there are no houses, buildings, or structures used as residences, or otherwise vacant property, shall, in the application for a permit to the building inspector, declare that such houses or structures for which a permit is asked are to be used as residences or places of abode for white persons or for colored persons. Upon the filing of said application the building inspector shall order the same published for two successive weeks in one of the daily newspapers of the city of Atlanta, calling particular attention to said notice, and the fact that the houses, buildings, or structures proposed to be built or erected are to be used as residences by white people or by colored people, as the case may be; and unless within five days from the date of the last publication thereof protest be made in writing to the building inspector by a majority of the property owners of said lot against the use mentioned in said notice, the permit desired shall issue, if in other respects said application be in con"Section 4. That the word 'block,' as used formity with the ordinances of the city. in this ordinance, is hereby defined to mean Thereafter all houses, buildings, or structhat portion of any street or alley together tures erected for houses or residences or with the lots abutting on same, whether or places of abode, and all houses, buildings, not, and upon both sides thereof, between or structures in said lot erected for other the two adjacent intersecting or crossing purposes, but which it may be desired to streets. In case either of said adjacent use as residences or places of abode, shall be streets intersect, but do not cross, the so used either as residences or places of street upon which the block in question may abode for white persons or for colored perbe located, the lots improved or unimproved, sons, as may be determined by the permit upon the side of the last-mentioned street, granted in the manner hereinbefore proto wit, the street facing the intersecting vided. Any person or persons moving into street, shall be included in the block be- or using as residences or places of abode tween the two adjacent intersecting crossing any of such houses, buildings, or structures, |