The constitutionality of the Tennessee and Delaware statutes has not been tested, as far as is known. Therefore, in the absence of authority, an opinion on the matter is of little value, but the following suggestion is ventured: Originally, hotels and inns were no more public places than a man’s dwelling, and one could choose his patrons just as he could choose the guests he would entertain, and might exclude anyone without giving his reasons for it, as a merchant might refuse to sell goods to anyone he chose. For historical reasons, which need not be discussed here, the courts held that an inn-keeper should not be allowed to refuse an applicant for entertainment unless he had some valid reason for it. The common law thereafter considered hotels, etc., public places. It has been seen that the Civil Rights Cases held that the Federal government cannot prohibit a hotel-keeper from refusing to receive an applicant, but that the regulation of such domestic relations is within the exclusive control of the State. If the State sees fit to pass a statute abrogating the common law, as Tennessee and Delaware did, and making hotels, etc., private places, as they were originally, there seems to be no valid constitutional objection. The reasoning that applies to hotels will apply to other places now considered public, possibly even to public conveyances.
The following resolution of the legislature of North Carolina[242] of 1877 is worth quoting in full. It is especially significant because it was passed after the Reconstruction régime was over, and the State government had passed back into hands of the Democratic party, with Zebulon B. Vance as Governor.
“_Whereas_, In the providence of God, the colored people have been set free, and this is their country and their home, as well as that of the white people, and there should be nothing to prevent the two races from dwelling together in the land in harmony and peace;
“_Whereas_, We recognize the duty of the stronger race to uphold the weaker, and that upon it rests the responsibility of an honest and faithful endeavor to raise the weaker race to the level of intelligent citizenship; and
“_Whereas_, The colored people have been erroneously taught that legislation under Democratic auspices would be inimical to their rights and interests, thereby causing a number of them to entertain honest fears in the premises,