concurring specially. I concur in the result reached, but not in all that is said in the .opinion of Mr. Justice Atkinson. It seems to me that the discussion in regard to the right to use property as an incident to ownership may lead to extreme results. The right of an owner to use his property is important, but it is not so absolute that he may, at all times and under all circumstances, use it as he pleases, regardless of the public welfare, morals, or safety. The statute books contain many laws restricting the use of property by the owner of it, and prohibiting him from using it for certain purposes. Laws prohibiting the erection of wooden buildings within the fire limits of a city restrict the owner’s use of his property, although he may contend that a wooden building which he desires to erect would be safe, and that he has not the means to build one of brick or stone. Laws which prevent an owner from using his property for the storage of dynamite, powder, oil, or other dangerous substances in populous communities, likewise place limitations upon the owner’s right to use his property as he sees fit. The right to contract has been treated as a part of the liberty of a citizen, and yet it is subject to certain limitations for the public good. Thus usurious contracts have long been prohibited. Many other illustrations might be given in addition to those arising under laws relating to the segregation of the white and negro races in cars and schools, I can not subscribe to the apparent idea that classification has nothing to do with such *203laws. Classification as to the particular use to which property is to. be put, having in view its location and surroundings, may be an important element in considering laws of this' character. In the leading case of Plessy v. Ferguson, 163 U. S. 537 (16 Sup. Ct. 1138, 41 L. ed. 256), Mr. Justice Brown, delivering the opinion of the court, said: “A statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races or re-establish a state of involuntary servitude.” Referring to the fourteenth amendment, he said: “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law; but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the -State legislatures in the exercise of their police power. The. most common instance of this is connected with the establishment of separate schools of white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States whore the political rights of the colored race have been longest and most earnestly enforced.”
In Pace v. Alabama, 106 U. S. 583 (1 Sup. Ct. 637, 27 L. ed. 207), it was held that -adultery between blacks and whites could constitutionally be punished more severely than the same crime between persons of the same race, on the ground that the white and black were punished alike, without discrimination. A law prohibiting the intermarriage of the two races has been declared valid. State v. Gibson, 36 Ind. 389 (10 Am. R. 42).
Suppose that an owner of property in the best residential portion of a city should claim the right to build upon his lot a large boarding-house or rooming-house, in which- he should receive indifferently boarders of both races and sexes, producing a situation of great irritation and calculated to bring about unfortunate re-*204suits. It is quite possible that the sacred right of property might be subject to regulation for the public safety (which has been declared to be the supreme law), by a reasonable pre-existing ordinance.
In Plessy v. Ferguson, supra, the law involved was one requiring railway companies carrying passengers in their coaches in the State of Louisiana to provide equal but separate accommodations for the white and colored races, by means of separate ears or by dividing the passenger-coaches by a partition. Such a law necessarily interfered to some extent with the right of the owner of the property to use it as it saw fit. While this law related to railway companies, the opinion of the majority of the Supreme Court of the United States was not based on that ground. On the contrary, Mr. Justice Harlan, who dissented, referred to the fact that a railway was a quasi public highway, where all might travel. Of course, regulations based on a distinction between the two races must be reasonable and not arbitrary, and the municipal council or other body making them must have authority to do so. In the present case, the petition does not distinctly make the point that the general welfare clause in a city charter does not confer authority to adopt a segregation ordinance, or aver in terms that the ordinance under consideration was unreasonable. It does, however, charge that the ordinance delegated to individuals the right to say how the plaintiffs should use their property. I think that this ground is well taken. If the residence of the two races in close proximity was a matter requiring regulation by ordinance, the legislative body should determine the fact, and not leave it to depend upon the will of individuals, perhaps the whim of a single resident, and subject to shift from time to time according to the wishes of some of those who for the time being might reside in the block, so that sometimes the block might be classified as “white,” sometimes as “black,” and sometimes mixed. It provides for no method for.determination of the fact by legitimate authority, save as a property-owner’s neighbors may wish. A similar ordinance adopted in Baltimore, which seems to have been taken as a guide in preparing the ordinance of Atlanta, was declared invalid by the Supreme Court of Mainland, although that court did not deny the right to use the distinction between the white and black races as a basis of legitimate classification.
*205The near approach of the end of the term, and the rush of business incident thereto, under a provision of our constitution which requires that all cases shall be decided at the first or the second term, prevents a more thorough discussion of the subject. I agree with the majority of the court that the particular ordinance here involved is unconstitutional and void. But I think the line of reasoning adopted by them may carry them too far.