The plaintiff recovered judgment against the defendant in the ' Municipal Court of the city of Rochester for $100 and costs for the defendant’s' refusal to shine his shoes on account of his color. The judgment was reversed by the County Court. The defendant, held himself out as a bootblack and had chairs in the corridor of the Powers’ Block, á commercial building, where he rented space for his business of polishing shoes.
*538The sole question here is whether a bootblack stand is a place of ■public accommodation under the provisions of chapter 1042 of the iaws of 1895, entitled “ An act to protect all citizens in their civil •and legal rights,” the 1st section of which reads as follows: “ Section 1. That all persons within the jurisdiction of this State shall be entitled to the full and equal accommodations, advantages, facilities and privileges of inns, restaurants, hotels, eating-houses, bathhouses, barber-shops, theatres, music halls, public conveyances on land and water, and all other places of public accommodation or •amusement, subject only to the conditions and limitations established by law and applicable alike to all citizens.”
A bootblack stand or chair, in and of itself, would not be regarded as a place “ of public accommodation ” within the meaning of the phrase as it is ordinarily used and understood. But it is insisted that a chair in which to shine shoes is as much a place of public accommodation as a barber shop, and this is the proposition upon which the appellant rests his contention. It may' be conceded for the purpose of the discussion that a chair in which to black shoes is as much a place of accommodation as a barber’s chair. A barber shop is something more than a bootblack stand and yet it is not a place of public accommodation in the sense in which the phrase is used. In the sense that a barber serves his patrons a bootblack is like a barber, although their places of business are not alike, but neither place of business can properly be designated as a place of public accommodation, except as every place to which the public is ■expressly or impliedly invited and are served either as patroiis ■or purchasers, such, as soda fountains, cigar stands, news stands, drygoods stores or groceries may be so designated. In the widest sense they are all places of accommodation, but not in the restricted sense of the phrase, as used in the statute, places of public accommodation.
Both parties invoke the rule for the .construction of statutes, that where general words follow specific words designating certain special things, the general words are limited to cases of the same general nature as those which are specified. (People v. Richards, 108 N. Y. 137; People v. New York & Manhattan Beach Ry. Co., 84 id; 565; Matter of Hermance, 71 id. 481.) Here the specific words which precede the general words are not. all of the. same general *539nature, and are followed by general words of different signification. It is plain, therefore, that the latter must each be limited in its application to the preceding specifip words to which it pertains. The phrase “ all other places of public accommodation ” must be held to be limited in its application to the places specifically named and . which are known as places of public accommodation, such as inns, restaurants, hotels and eating houses, and all other places of public amusement to theaters and music halls.
The statute has not in respect to the matters here under consideration received construction in the courts of this State, but in Cecil v. Green (161 Ill. 265) it was sought to bring the act of the defendant, who was engaged in the drug business and in connection therewith kept for sale soda water,- etc., and had refused to serve cherry phosphate to the plaintiff on account of his color, within the provisions of a statute of Illinois (Laws of Ill. of 1885, p. 64), which provided that all persons should be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, restaurants, eating houses, barber shops, public conveyances on land or water, theaters and all other places of public accommodation and amusement. It will be observed that barber shops are'among the places mentioned which preceded the phrase. “ and all other places of public accommodation.” The court there said, referring to soda fountains: “ Such places can be considered places of accommodation or amusement to no greater extent than a place where dry goods or clothing, boots and shoes, hats and caps or groceries, are dispensed. The -personal liberty of an individual in his business transactions and his freedom from restrictions is a question of the utmost moment, and no construction can be adopted by which an individual right of action will be included as controlled within a legislative enactment, unless clearly expressed in such enactment and certainly included within the constitutional ■limitation on the power of the Legislature.”
There can be no place of greater public necessity except it be an inn or hotel for the accommodation of travelers than a drug store kept open night and day for the accommodation of the public, and yet it cannot be regarded as a place of public accommodation within the meaning of the statute, unless places for the sale and furnishing of provisions and clothing and places of a like nature are included.
*540It is urged that the legal effect of the decision of the court below ■ would be that one might enter a barber shop in which there might be maintained as an adjunct thereto a shoe-polishing stand, and be refused service at such stand on account of color, in which event the proprietor of the barber shop would be violating the statute, . while one maintaining a stand in the entrance way to a large commercial building, and depending upon the custom of the .public indiscriminately can with impunity refuse service to an applicant on account of color. Doubtless the refusal of such service by a barber maintaining a bootblack stand would be within the inhibition of the statute, not because the bootblack chair'could be held to be a place of public accommodation, but by force of the provision that, all persons shall be entitled to the full and equal accommodations, advantages, facilities and privileges of the barber shop. The larger hotels • are provided with bootblack chairs, news stands, cigar stands, and under the statute such hotels as happen to have them would be without doubt required to permit guests to avail themselves, of these accommodations, advantages, facilities and privileges. They could not otherwise be' required, ias only food and lodging can be demanded at an inn, but if such accommodations are provided all who become guests of the hotel would be equally entitled to their . full enjoyment, not, however, by others than such as become guests; the proprietor of a hotel would not be required to allow his bootblack chair to be filled or his news Or cigar. stands to be overrun with patrons not .guests of the hotel.
I agree with the suggestion of my associates that a liberal rather than a narrow interpretation should be given to the enactments evidencing the intention to eliminate race distinction as far as that can be done by legislative intervention. Therefore, in enforcing the provisions of the statute as to the facilities and privileges which should be furnished and the manner in which it should be done tin the places designated, the statute should receive a liberal and effective interpretation. Büt in the interpretation of the statute, for the purpose of ascertaining the legislative intent as to the places which are within its provisions, regard must be had to known and settled-rules of construction.
The statute is highly penal. One who - violates its provisions is not only liable to prosecution in a civil action at the suit of the *541person aggrieved, but the violation of the provisions of the statute is a crime subjecting the offender to fine and imprisonment.
It requires the reference to but a single authority to show that the interpretation of the statute in accordance with the contention of the appellant would be an entire disregard of the principle of construction applicable to penal statutes. In People v. Phyfe (136 N. Y. 554) it was held that purely statutory offenses cannot be established by implication, and that acts otherwise innocent and lawful do not become crimes unless there is a clear and positive expression of the legislative intent to make them such. Judge Maynard, writing for the court, said : “ We express no opinion as to the extent to which the sovereign power may go in restricting the exercise of what are sometimes termed the natural rights and privileges of the individual parties to the social compact; or how far their freedom of action may be controlled by statutory regulations * * *. We are required here to apply that principle of construction which is coeval with municipal law, that purely statutory offenses cannot be established by implication, and that acts otherwise innocent and lawful do not become crimes unless there is a clear and positive expression of the legislative intent to make them criminal. The citizen is entitled to an unequivocal warning before conduct on his part which is not malum in se, can be made the occasion of a deprivation of his liberty or property.”
Here, by implication, the defendant is sought to be brought within the provisions of the statute and mulcted not only in heavy damages, but adjudged guilty of a crime. The judgment should be affirmed.
McLennan, J., concurred.
Judgment of County Court reversed and that of Municipal Court affirmed, with costs.