The first and second sections of the Civil Rights Act of 1875, 18 Stat. 336, as distinguished from the present Act of 1871, was clearly intended to secure to all persons, regardless of race and color, 'the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, * * * , theaters, and other places of public amusement.' These sections were held 'unconstitutional and void.' Civil Rights Cases, supra. The construction urged by the plaintiffs in this case would require us to read into the present Act the first and second sections of the Act of 1875. This cannot be done without disregarding the laws of the Civil Rights Cases.
Mr. Justice Bradley, in the opinion of the Court in the cited case, stated 109 U.S.at page 17, 3 S. Ct.at pages 25, 26, 27 L. Ed. 835: 'The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress. An individual cannot deprive a man of his right to vote, to hold property, to buy and to sell, to sue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment of the right in a particular case; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow-citizen; but unless protected in these wrongful acts by some shield of state law or state authority, he cannot destroy or injure the right; he will only render himself amenable to satisfaction or punishment; and amenable therefor to the laws of the state where the wrongful acts are committed. Hence, in all those cases where the constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the state by prohibiting such laws, it is not individual offences, but abrogation and denial of rights, which it denounces, and for which it clothes the congress with power to provide a remedy. This abrogation and denial of rights, for which the states alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied.'
It cannot be seriously urged that the action of the defendants was 'under color of statute.' Their action violated the laws of New Jersey, and particularly R.S. 10:1-3, N.J.S.A. 10:1-3, which provides: 'No owner, lessee, proprietor, manager, * * * agent or employee of any such place' (places of public accommodation, resort or amusement) 'shall directly or indirectly refuse, withhold from, or deny to, any person any of the accommodations, advantages, facilities or privileges thereof, * * * on account of race, creed, or color.' R.S. 10:1-6, N.J.S.A. 10:1-6 provides: 'Any person who shall violate any of the provisions of Sections 10:1-2 to 10:1-5 of this Title * * * shall, for each and every violation thereof, forfeit and pay the sum of not less than one hundred dollars ($ 100.00) nor more than five hundred dollars ($ 500.00), to the State, to be recovered in an action at law, with costs, and shall also, for every such violation, be deemed guilty of a misdemeanor, and upon conviction thereof, shall be subject to a fine of not more than five hundred dollars ($ 500.00), or imprisonment of not more than ninety days, or both.'
The ejection of the plaintiffs from the park after their admission upon payment of the usual fee was undoubtedly a breach of contract, and their forcible ejection from the park by the defendants may have constituted an assault. These were private wrongs which may be redressed in the state courts and under the laws of the state; they were private wrongs which may be redressed to this court under the laws of the state, provided, of course, that the elements essential to jurisdiction are present. The claims for relief based upon these wrongs, however, are not cognizable under the Civil Rights Act.
Each of the plaintiffs Samuel Scott, Morris Horowitz and James Peck, in the eighteenth, ninteenth, twenty-second, twenty-third, twenty-fourth and twenty-fifth counts of the complaint, alleges that he was 'falsely imprisoned and detained' by the defendant Stengel, the Chief of Police. This allegation, without more, is insufficient to sustain a claim for relief under the Civil Rights Act. There is no allegation that the said defendant acted either under color of statute or pretense of law to deprive the plaintiffs of a constitutional right, an essential element of a cause of action under the Act. Snowden v. Hughes, supra; Pickering v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240. The plaintiffs may have a cause of action under the Act, but they have failed to properly assert it. They will be accorded the opportunity of amending these counts of the complaint.
The motion to dismiss the complaint is granted as to all the counts except counts eighteen, nineteen, twenty-two, twenty-three, twenty-four and twenty-five. The defendants shall prepare and submit, on notice to the plaintiffs, an appropriate order.
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