their rights at common law and by State statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this proviso shall not apply to criminal proceedings, either under this act or the criminal law of any State: And provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively. SEC. 3. That the district and circuit courts of the United States shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses against, and violations of, the provision of this act; and actions for the penalty given by the preceding section may be prosecuted in the Territorial, district, or circuit courts of the United States wherever the defendant may be found, without regard to the other party; and the district attorneys, marshals, and deputy marshals of the United States, and commissioners appointed by the circuit and Territorial courts of the United States, with powers of arresting and imprisoning or bailing offenders against the laws of the United States, are hereby specifically authorized and required to institute proceedings against every person who shall violate the provisions of this act, and cause him to be arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States or Territorial court as by law has cognizance of the offense, except in respect of the right of action accruing to the person aggrieved; and such district attorneys shall cause such proceedings to be prosecuted to their termination as in the other cases: Provided, That nothing contained in this section shall be construed to deny or defeat any right of civil action accruing to any person whatever by reason of this act or otherwise; and any district attorney who shall willfully fail to institute and prosecute the proceedings herein required, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action of debt, with full costs, and shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not less than one thousand nor more than five thousand dollars: And provided further, That a judgment for the penalty in favor of the party aggrieved against any such district attorney, or a judgment upon an indictment against any such district attorney, shall be a bar to either prosecution respectively.

SEC. 4. That no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitiude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.

SEC. 5. That all cases arising under the provisions of this act in the courts of the United States shall be receivable by the Supreme Court of the United States, without regard to the sum in controversy, under the same provisions and regulations as are now provided by law for the review of other causes in said court. (18 Stats., 335 to 337.)

No. 37. UNITED STATES v. MICHAEL RYAN.

STATEMENT.

This was an information in the circuit court of the United States, ninth circuit, district of California, in the form following:

Be it remembered that on this 12th day of February, A.D. 1876, comes into court, in his own proper person, Walter Van Dyke, esq., United States attorney for the aforesaid district of California, and in the name and on the behalf of the United States gives the said court to understand and be informed that on the 4th day of January, A.D. 1876, at the city and county of San Francisco, State of California, and within the district aforesaid, and within the jurisdiction of this court, Michael Ryan, then and there being, did then and there wilfully, knowingly, and unlawfully, deny to a citizen of the United States the full and equal enjoyment of the advantages, accommodations, facilities, and privileges of a public theatre, such denial being for reasons by law not applicable to citizens of every race and color, to wit, the said Michael Ryan, on said day, at said city and county, did knowingly, wilfully, and unlawfully deny to George M. Tyler, a citizen of the United States, the full enjoyment of the accommodations, advantages, facilities, and privileges of Maguire's new theatre, situate on Bush

No. 37 is an information against Ryan for depriving a colored man of the righ to a seat in the parquet of a theater in San Francisco.

Though the main question of the constitutionality of the civil rights act ap proved March 1, 1875, is the same in these three cases, which are therefore sub mitted together, the court below divided upon the question whether the indict ment in the first case stated an offense, and a demurrer to the information was sustained in the second; so the first indictment and the information agains Ryan must be here printed in full. In the last case the division of the cour below presents only the question of the constitutionality of the statute aforesai so that indictment will not be reprinted.

No. 26. UNITED STATES V. MURRAY STANLEY

STATEMENT.

At the term of the district court of the United States of America in and fe the said district of Kansas, begun and held at Topeka, in said district, on the 10th day of April, in the year of our Lord one thousand eight hundred and seventy-six, the grand jurors of the United States of America, duly empaneled sworn, and charged to inquire of offenses committed within the district of Kansas, upon their oaths do find and present that one Murray Stanley, late of the district of Kansas aforesaid, on the tenth day of October, in the year of ou Lord one thousand eight hundred and seventy-five, at the district of Kanse aforesaid, and within the jurisdiction of this court, being then and there charge and having management and control of a certain inn, did then and there unlawfully deny to one Bird Gee, then and there a citizen of the State of Kans and of the United States of America, full and equal enjoyment of the accom modations, advantages, facilities, and privileges of said inn by then and there denying to said Bird Gee the privleges of then and there partaking of a mes to wit, of a supper, at the table of said inn, for such purpose then and ther provided, he, the said Murray Stanley, having then and there so as aforesai denied to said Bird Gee the aforesaid full and equal enjoyment of the acco modations, advantages, facilities, and privileges of said inn, for the reason the he, the said Bird Gee, was then and there a person of color and of the Africa race, and for no other reason whatever, contrary to the act of Congress in such case made and provided, and against the peace and dignity of the United States of America. (Record, 1, 2, and 3, 4.)

The foregoing indictment was demurred to; and, upon argument of the dem rer, the judges were divided in opinion upon these questions:

1. "Does the indictment state an offense punishable by the laws of the Unite States, or cognizable by the Federal courts"?

2. "Is the act of Congress entitled 'An act to protect all citizens in their civ and legal rights,' approved March 1, 1875, constitutional"?

That statute is prefaced with a preamble, and reads as follows:

Whereas it is essential to just government we recognize the equality of a men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativit race, color, or persuasion, religious or political; and it being the appropriate object of legislation to enact great fundamental principles into law: Therefore Be it enacted by the Senate and House of Representatives of the United State of America in Congress assembled: That all persons within the jurisdiction d the United States shall be entitled to the full and equal enjoyment of the acco modations, advantages, facilities, and privileges of inns, public conveyances c land or water, theaters, and other places of public amusement; subject only the conditions and limitations established by law, and applicable alike to citizer of every race and color, regardless of any previous condition of servitude. SEC. 2. That any person who shall violate the foregoing section by denying any citizen, except for reasons by law applicable to citizens of every race a || color, and regardless of any previous condition of servitude, the full enjoyme: of any of the accommodations, advantages, facilities, or privileges in said sectio enumerated, or by aiding or inciting such denial, shall for every such offense, fot feit and pay the sum of five hundred dollars to the person aggrieved thereb to be recovered in an action of debt with full costs; and shall also, for ever such offense, be deemed guilty of a misdemeanor, and upon conviction there shall be fined not less than five hundred nor more than one thousand dollars. shall be imprisoned not less than thirty days nor more than one year: Provide That all persons may elect to sue for the penalty aforesaid, or to proceed unde?

their rights at common law and by State statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this proviso shall not apply to criminal proceedings, either under this act or the criminal law of any State: And provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively. SEC. 3. That the district and circuit courts of the United States shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses against, and violations of, the provision of this act; and actions for the penalty given by the preceding section may be prosecuted in the Territorial, district, or circuit courts of the United States wherever the defendant may be found, without regard to the other party; and the district attorneys, marshals, and deputy marshals of the United States, and commissioners appointed by the circuit and Territorial courts of the United States, with powers of arresting and imprisoning or bailing offenders against the laws of the United States, are hereby specifically authorized and required to institute proceedings against every person who shall violate the provisions of this act, and cause him to be arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States or Territorial court as by law has cognizance of the offense, except in respect of the right of action accruing to the person aggrieved; and such district attorneys shall cause such proceedings to be prosecuted to their termination as in the other cases: Provided, That nothing contained in this section shall be construed to deny or defeat any right of civil action accruing to any person whatever by reason of this act or otherwise; and any district attorney who shall willfully fail to institute and prosecute the proceedings herein required, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action of debt, with full costs, and shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not less than one thousand nor more than five thousand dollars: And provided further, That a judgment for the penalty in favor of the party aggrieved against any such district attorney, or a judgment upon an indictment against any such district attorney, shall be a bar to either prosecution respectively.

SEC. 4. That no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitiude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.

SEC. 5. That all cases arising under the provisions of this act in the courts of the United States shall be receivable by the Supreme Court of the United States, without regard to the sum in controversy, under the same provisions and regulations as are now provided by law for the review of other causes in said court. (18 Stats., 335 to 337.)

No. 37. UNITED STATES v. MICHAEL RYAN.

STATEMENT.

This was an information in the circuit court of the United States, ninth circuit, district of California, in the form following:

Be it remembered that on this 12th day of February, A.D. 1876, comes into court, in his own proper person, Walter Van Dyke, esq., United States attorney for the aforesaid district of California, and in the name and on the behalf of the United States gives the said court to understand and be informed that on the 4th day of January, A.D. 1876, at the city and county of San Francisco, State of California, and within the district aforesaid, and within the jurisdiction of this court, Michael Ryan, then and there being, did then and there wilfully, knowingly, and unlawfully, deny to a citizen of the United States the full and equal enjoyment of the advantages, accommodations, facilities, and privileges of a public theatre, such denial being for reasons by law not applicable to citizens of every race and color, to wit, the said Michael Ryan, on said day, at said city and county, did knowingly, wilfully, and unlawfully deny to George M Tyler, a citizen of the United States, the full enjoyment of the accommodation advantages, facilities, and privileges of Maguire's new theatre, situate on Bus

street between Montgomery and Kearney, being on the southerly side of said Bush street, in the city and county of San Francisco, State of California, aforesaid, the same being a place of public amusement, as follows, to wit, that is t say, on the said 4th day of January, A.D. 1876, the said George M. Tyler dic purchase a certain ticket of admission to said theatre of the ticket-seller or authorized agent of said theatre, for the sum of one dollar, which sum said Tyler duly paid to said agent, to wit, said ticket-seller, a certain printed ticke of admission to the said theatre, and to the part thereof known and designated as the dress-circle or parquette, and orchestra seats, which said dress-circle otherwise known as the parquette, and said orchestra seats, did possess superior and better advantages, facilities, and privileges to any other portion of said theatre; which said ticket did purport to admit, and did entitle said George M Tyler to admission to the said portion of said theatre known and designated "the dress-circle," otherwise called the "parquette," and to that portion of the said theatre known and designated the "orchestra" seats.

And on said fourth day of January, A.D. one thousand eight hundred and seventy-six, in the evening of said day, and about or between the hours of sever and eight o'clock p.m., while the doors of said theatre were open for the purpose of admitting the public to, and about the time of the hour of the commencement of the performance in said theatre, said George M. Tyler, thec and there being a citizen of the United States, and under the jurisdiction there of, did then and there present said ticket in his own person to said Michael Ryan who was the doorkeeper to admit persons with tickets, and ticket-taker o said theatre, standing at the proper entrance thereof, and did, upon said ticket ask and demand admission to said theatre, and to the part and portion there designated as the dress-circle, otherwise called the parquette, and the orchestraseats thereof; and thereupon said Michael Ryan, then and there being s aforesaid, did then and there wilfully, knowingly, wrongfully, and unlawfully. by force and arms, deny to said George M. Tyler, as aforesaid, admission t said theatre, or to any part thereof, and did then and there deny as aforesaid. to said George M. Tyler the full and equal enjoyment of the accommodations advantages, facilities, and privileges of the said theatre, said denial and re fusal not being for reasons applicable by law to citizens of every race and color, and regardless of any previous condition of servitude; that said refus and denial as aforesaid was solely and entirely on account of and for the reason that said George M. Tyler was and is of the African or negro race. being what is comonly known and called a colored man, and not a white man. That said George M. Tyler was then and now is a person of the Africa: or negro race, being what is known and commonly called a colored man.

And so the said attorney of the United States, in the name and behalf of the United States, gives the said court to understand and be informed that sa Michael Ryan did then and there as aforesaid, on said day, in the manner aforesaid, commit the crime of unlawfully denying and refusing to a citize: of the United States the full enjoyment of the accommodations, advantages. facilities, and privileges of a theatre (the same being a public place of amuse ment). for reason not by law applicable to citizens of every race and color regardless of any condition of previous servitude, contrary to the form of the statutes of the United States of America in such case made and provided, and against the peace and dignity of the people thereof. (Record, 4.)

A demurrer was filed to this information, together with a motion to dismiss it. (Record, 4, 5.)

The court sustained the demurrer and ordered the information to be dismissed. (Record, 5.)

ASSIGNMENT OF ERROR.

The United States assign for error the sustaining of the demurrer and the dismissal of the information.

No. 105. UNITED STATES V. SAMUEL NICHOLS.

A demurrer was filed to the indictment in this case; "and the demurrer to the indictment herein coming on now to be heard, and the judges of this court being divided in opinion on the point of the validity under the Constitution of the United States of the statute under which said indictment is drawn. ** i is ordered on the request of said parties that said point be certified under the seal of the court to the Supreme Court of the United States," &c. (Record, 6,)

BRIEF.

As no informalities have been pointed out in the indictment and information, ve shall confine this brief to the main question, common to the three cases, f the constitutionality of the statute upon which they are founded.

Lans are provided for the accommodation of travelers; for those passing rm place to place. They are essential instrumentalities of commerce (espely as now carried on by "drummers"), which it was the province of the nited States to regulate even prior to the recent amendments to the Con*.tution.

The relation of innkeepers to the State differs from that of a man engaged in The more common avocations of life. The former is required to furnish the accommodations of his inn to all well-behaved comers who are prepared to pay customary regular price.

This business and that of conducting a theatre are carried on under a license from the State, through the intermmediate agency of municipal authority, which part of the machinery of the State, being delegated to this extent with the wer of the State. This is because the business to be carried on is quasi public Lits nature, and for the general accommodation of the people.

For this reason Congress has the right to prohibit any discrimination against persons applying for admission to an inn or theatre based upon race, color, or previous condition of servitude.

The early amendments to the Constitution were added further to limit the Federal power. The last three, the result of bitter, costly experience, were intended to enlarge that power. Such enlargement must necessarily be pro tanto a diminuation of, or an encroachment upon, the power previously exercised the State. These amendments also interfered, for the first time, with the ation borne by the citizen to his State, and with those institutions and reg..tions of a (so called) domestic character.

This innovation was not so dangerous to liberty as many theorists imagine. Beh State and National Governments are mere machinery by which the induals composing the Nation secure life, liberty, rights, and privileges. i rom time to time, as experience demonstrates the necessity or expediency of doing, the people may change the mutual adjustment, or even the essential tracter, of this machinery to accomplish the desired purpose.

It was thought that the lately emancipated portion of our fellow-citizens .d more safely depend for the security of their newly acquired rights upon the government which conferred them than upon that which had so long denied them. It may be remarked, in passing, that the greatest freedom is only attainable through the agencies and operation of the Federal Government. In one State, discriminations are made on account of religion; in another, upon the quisition of land or other property; in a third, upon the basis of color; and In another by reason of Mongolian birth. It is in Federal legislation and in the action of Federal courts alone that these discriminations are wholly disregarded. Equality before the law, then, is the privilege of American citizenship, confered by the national Constitution; therefore, to be protected by national eg station. (16 Wall., 79; United States v. Reese, 92 U.S., 214, 217, where e court say that appropriate legislation "may be raised to meet the necessities of the particular right to be protected.")

The exclusion complained of in the causes at bar were because of the race ind recent servile condition of the persons excluded. The law forbidding such *xension, for such motive, is "appropriate to efface the existence of any conseflatce or residuum of slavery." (Hon. F. T. Frelinghuysen in debate on this Jokerol 2. Cong. Rec., pt. 4, first session Forty-third Congress, p. 3453, end of frst column ) At the bottom of the same page he cites the Slaughter-House as holding "that freedom from discrimination is one of the rights of United States citizenship."

What the United States had the right to give, it necessarily has the right and duty to preserve and protect.

We cant ot proceed against or deal with the States to procure needed legislaton; nor compel action by the grand juries of a State. We must necessarily [xecute directly those offenders who deny, on account of race or color, that lity which the Constitution guarantees.

The fourteenth amendment made native-born colored men citizens of the State * which they were resident. Their State citizenship originated in the national Constitution. Therefore Congress may legislate to compel the concession to them of such rights, whatever they may be, as are conceded to other citizens