Imágenes de páginas
PDF
EPUB

209, 94 S. W. 623), and from that brought here on writ of error.

court | Ct. Rep. 593, 595; Perrine v. Chesapeake & D. Canal Co. 9 How. 172-184, 13 L. ed. 9297; Horn Silver Min. Co. v. New York, 143

Messrs. Guy Ward Mallon and John U. S. 305-312, 36 L. ed. 164-167, 4 Inters.

G. Carlisle for plaintiff in error.

Messrs. N. B. Hays, James Breathitt, Thomas B. McGregor, and Charles H. Morris for defendant in error.

* Mr. Justice Brewer delivered the opinion of the court:

Com. Rep. 57, 12 Sup. Ct. Rep. 403. The act of 1904 forbids "any person, corporation, or association of persons to maintain or operate any college," etc. Such a statute may conflict with the Federal Constitution in denying to individuals powers which they may rightfully exercise, and yet, at the same time, be valid as to a corporation created by the state.

There is no dispute as to the facts. That the act does not violate the Constitution of Kentucky is settled by the decision of its It may be said that the court of appeals highest court, and the single question for sustained the validity of this section of the our consideration is whether it conflicts with statute, both against individuals and corpothe Federal Constitution. The court of ap- rations. It ruled that the legislation was peals discussed at some length the general within the power of the state, and that the power of the state in respect to the separa-state might rightfully thus restrain all intion of the two races. It also ruled that dividuals, corporations, and associations. "the right to teach white and negro children But it is unnecessary for us to consider anyin a private school at the same time and thing more than the question of its validity place is not a property right. Besides, ap- as applied to corporations. pellant, as a corporation created by this state, has no natural right to teach at all. Its right to teach is such as the state sees fit to give to it. The state may withhold it altogether, or qualify it. Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427."

Upon this we remark that when a state court decides a case upon two grounds, one Federal and the other non-Federal, this court will not disturb the judgment if the nonFederal ground, fairly construed, sustains the decision. Murdock v. Memphis, 20 Wall. 590, 636, 22 L. ed. 429, 444; Eustis v. Bolles, 150 U. S. 361, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131; Giles v. Teasley, 193 U. S. 146160, 48 L. ed. 655-658, 24 Sup. Ct. Rep. 359; Allen v. Arguimbau, 198 U. S. 149, 49 L ed. 990, 25 Sup. Ct. Rep. 622.

[ocr errors]

The statute is clearly separable, and may be valid as to one class while invalid as to another. Even if it were conceded that its assertion of power over individuals cannot be sustained, still it must be upheld so far as it restrains corporations.

There is no force in the suggestion that the statute, although clearly separable, must stand or fall as an entirety on the ground the legislature would not have enacted one part unless it could reach all. That the legislature of Kentucky desired to separate the teaching of white and colored children may be conceded; but it by no means follows that it would not have enforced the separation so far as it could do so, even though it could not make it effective under all circumstances. In other words, it is not at all unreasonable to believe that the legislature, although advised beforehand of the constitutional question, might have prohibited all organizations and corporations under its control from teaching white and colored children together, and thus made at least uniform official action. The rule of construction in questions of this nature is stated by Chief Justice Shaw in Warren v. Charlestown, 2 Gray, 84, quoted approvingly by this court in Allen v. Louisiana, 103 U. S. 80-84, 26 L. ed. 318, 319:

Again, the decision by a state court of the extent and limitation of the powers conferred by the state upon one of its own corporations is of a purely local nature. In creating a corporation a state may with hold powers which may be exercised by and cannot be denied to an individual. It is under no obligation to treat both alike. In granting corporate powers the legislature may deem that the best interests of the state would be subserved by some restriction, and the corporation may not plead that, in spite "But if they are so mutually connected of the restriction, it has more or greater with and dependent on each other, as conpowers because the citizen has. "The grant-ditions, considerations, or compensations for ing of such right or privilege [the right or each other as to warrant a belief that the privilege to be a corporation] rests en- legislature intended them as a whole, and tirely in the discretion of the state, and, of course, when granted, may be accompanied with such conditions as its legislature may judge most befitting to its interests and policy." Home Ins. Co. v. New York, 134 U. S. 594-600, 33 L. ed. 1025-1029, 10 Sup.

that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent. conditional, or connected, must fall with them."

*56

See also Loeb v. Columbia Twp. 179 U. S. 472, 490, 45 L. ed. 280, 290, 21 Sup. Ct. Rep. 174, 181, in which this court said:

"As one section of a statute may be repugnant to the Constitution without rendering the whole act void, so one provision of a section may be invalid by reason of its not conforming to the Constitution, while all the other provisions may be subject to no constitutional infirmity. One part may stand, while another will fall, unless the two are so connected or dependent on each other in subject-matter, meaning, or purpose, that the good cannot remain without the bad. The point is not whether the parts are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance,-whether the provisions are so interdependent that one cannot operate without the other."

Further, inasmuch as the court of appeals considered the act separable, and, while sustaining it as an entirety, gave an independent reason which applies only to corporations, it is obvious that it recognized the force of the suggestions we have made. And when a state statute is so interpreted, this court should hesitate before it holds that the supreme court of the state did not know what was the thought of the legislature in its enactment. Missouri K. & T. R. Co. v. McCann, 174 U. S. 580, 586, 43 L. ed. 1093, 1096, 19 Sup. Ct. Rep. 755; Tullis v. Lake Erie & W. R. Co. 175 U. S. 348, 353, 44 L. ed. 192, 194, 20 Sup. Ct. Rep. 136.

While the terms of the present charter are not given in the record, yet it was admitted on the trial that the defendant was a corporation organized and incorporated under the general statutes of the state of Kentucky, and of course the state courts, as well as this court on appeal, take judicial notice of those statutes. Further, in the brief of counsel for the defendant is given a history of the incorporation proceedings, together with the charters. From that it appears that Berea College was organized under the authority of an act for the incorporation of voluntary associations, approved March 9, 1854 (2 Stanton, Rev. Stat. [Ky.] 553), which act was amended by an act of March 10, 1856 (2 Id. 555), and which in terms reserved to the general assembly "the right to alter or repeal the charter of any associations formed under the provisions of this act, and the act to which this act is an amendment, at any time hereafter." After the Constitution of 1891 was adopted by the state of Kentucky, and on June 10, 1899, the college was reincorporated under the provisions of chap. 32, art. 8, Ky. Stat. (Carroll, Stat. [Ky.] 1903, p. 459), the charter defining its business in these words: "Its

object is the education of all persons who may attend its institution of learning at Berea, and, in the language of the original articles, 'to promote the cause of Christ.'" The Constitution of 1891 provided in § 3 of the Bill of Rights that "every grant of a franchise, privilege, or exemption shall remain, subject to revocation, alteration, or amendment." Carroll, Stat. (Ky.) 1903, p. 86. So that the full power of amend ment was reserved to the legislature.

It is undoubtedly true that the reserved power to alter or amend is subject to some limitations, and that, under the guise of an amendment, a new contract may not always be enforceable upon the corporation or the stockholders; but it is settled "that a power reserved to the legislature to alter, amend, or repeal a charter authorizes it to make any alteration or amendment of a charter grant ed subject to it, which will not defeat or substantially impair the object of the grant, or any rights vested under it, and which the legislature may deem necessary to secure either that object or any public right. Inland Fisheries v. Holyoke Water Power Co. 104 Mass. 446, 451, 6 Am. Rep. 247; Holyoke Water Power Co. v. Lyman, 15 Wall. 500, 522, 21 L. ed. 133, 140;" Close v. Glenwood Cemetery, 107 U. S. 466, 476, 27 L ed. 408, 412, 2 Sup. Ct. Rep. 267, 274.

Construing the statute, the court of appeals held that "if the same school taught the different races at different times, though at the same place, or at different times at the same place, it would not be unlawful." Now, an amendment to the original charter, which does not destroy the power of the college to furnish education to all persons, but which simply separates them by time or place of instruction, cannot be said to "defeat or substantially impair the object of the grant." The language of the statute is not in terms an amendment, yet its effect is an amendment, and it would be resting too much on mere form to hold that a statute which in effect works a change in the terms of the charter is not to be considered as an amendment, because not so designated. The act itself, being separable, is to be read as though it, in one section, prohibited any person, in another section any corporation. and, in a third, any association of persons to do the acts named. Reading the statute as containing a separate prohibition on all corporations, at least, all state cor- o porations, it substantially declares that any authority given by previous charters to instruct the two races at the same time and in the same place is forbidden, and that prohibition, being a departure from the terms of the original charter in this case, may properly be adjudged an amendment.

Again, it is insisted that the court of ap

10

"Sec. 3. It shall be unlawful for any white person to attend any school or institution where negroes are received as pupils or receive instruction, and it shall be unlawful for any negro or colored person to attend any school or institution where white persons are received as pupils or receive instruction. Any person so offending shall be fined $50 for each day he attends such institution or school: Provided, That the provisions of this law shall not apply to any penal institution or house of reform.

peals did not regard the legislation as making an amendment, because another prosecution instituted against the same corporation under the 4th section of the act, which makes it a misdemeanor to teach pupils of the two races in the same institution, even although one race is taught in one branch and another in another branch, provided the two branches are within 25 miles of each other, was held could not be sustained, the court saying: "This last section, we think, violates the limitations upon the police power: it is unreasonable and oppressive." But, while so ruling, it also held that this section could be ignored and that the remainder of the act was complete notwith-taining a separate and distinct branch therestanding. Whether the reasoning of the court concerning the 4th section be satisfactory or not is immaterial, for no question of its validity is presented, and the court of appeals, while striking it down, sustained the balance of the act. We need concern ourselves only with the inquiry whether the 1st section can be upheld as coming within the power of a state over its own corporate creatures.

"Sec. 4. Nothing in this act shall be construed to prevent any private school, college, or institution of learning from main

of, in a different locality, not less than 25 miles distant, for the education exclusively of one race or color.

"Sec. 5. This act shall not take effect, or be in operation, before the 15th day of July, 1904." Acts 1904, chap. 85, p. 181.

The plaintiff in error, Berea College, is an incorporation, organized under the General Laws of Kentucky in 1859. Its original articles of incorporation set forth that the object of the founders was to establish and maintain an institution of learning, "in or

We are of opinion, for reasons stated, that it does come within that power, and, on this ground, the judgment of the Court of Ap-der to promote the cause of Christ." In peals of Kentucky is affirmed.

Mr. Justice Holmes and Mr. Justice Moody concur in the judgment.

[ocr errors]

Mr. Justice Harlan, dissenting: This prosecution arises under the 1st section of an act of the general assembly of Kentucky, approved March 22d, 1904. The purpose and scope of the act is clearly indicated by its title. It is "An Act to Prohibit White and Colored Persons from Attending the Same School." Ky. Acts 1904, P. 181.

It is well to give here the entire statute, as follows:

"Sec. 1. That it shall be unlawful for any person, corporation, or association of persons to maintain or operate any college, school, or institution where persons of the white and negro races are both received as pupils for instruction; and any person or corporation who shall operate or maintain any such college, school, or institution shall be fined $1,000, and any person or corporation who may be convicted of violating the provisions of this act shall be fined $100 for each day they may operate said school, college, or institution after such conviction. "Sec. 2. That any instructor who shall teach in any school, college, or institution where members of said two races are received as pupils for instruction shall be guilty of operating and maintaining same and fined as provided in the 1st section hereof.

1899 new articles were adopted, which provided that the affairs of the corporation should be conducted by twenty-five persons.

In 1904 the college was charged in a Kentucky state court with having unlawfully and wilfully received both white and negro persons as pupils for instruction. A demurrer to the indictment was overruled, and a trial was had which resulted in a verdict of guilty and the imposition of a fine of $1,000 on the college. The trial court refused an instruction asked by the defendant, to the effect that the statute was in violation of the 14th Amendment of the Constitution of the United States. A motion in arrest of judgment and for a new trial having been overruled, the case was taken to the highest court of Kentucky, where the judgment of conviction was affirmed, one of the members of the court dissenting.

The state court had before it and determined at the same time (delivering one opinion for both cases) another case against Berea College,-which was an indictment based on § 4 of the same statute,—under which the college was convicted of the of fense of "maintaining and operating a college, school, and institution of learning where persons of the white and negro races are both received, and within a distance of 25 miles of each other, as pupils for instruction." After observing that there were fundamental limitations upon the police power of the several states which could not be disregarded, the state court held 4 of

that the legislature had in mind to prohibit the teaching of the two races in the same private * institution, at the same time, by

It is a reflection upon the common sense of legislators to suppose that they might have prohibited a private corporation from teaching by its agents, and yet left individuals and unincorporated associations entirely at liberty, by the same instructors, to teach the two races in the same institution at the same time. It was the teaching of pupils of the two races together, or in the same school, no matter by whom or under whose authority, which the legislature sought to prevent. The manifest purpose was to prevent the association of white and colored persons in the same school. That such was its intention is evident from the title of the act, which, as we have seen, was "to pro

the statute to be in violation of those limitations because "unreasonable and oppressive." Treating that particular section as null and void and regarding the other sec-whomsoever that institution was conducted. tions as complete in themselves and enforceable, the state court, in the first case (the present case) based on § 1, affirmed, and, in the second case, based on § 4 of the statute, reversed, the judgment. It held it to be entirely competent for the state to adopt the policy of the separation of the races, even in private schools, and concluded its opinion in these words: "The right to teach white and negro children in a private school at the same time and place is not a property right." The state court (but without any discussion whatever) added, as if merely incidental to or a makeweight in the decision of the pivotal question in this case, these words: "Besides, appellant, as a corporation created by this state, has no natu-hibit white and colored persons from atral right to teach at all. Its right to teach is such as the state sees fit to give to it. The state may withhold it altogether or qualify it. Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427." [123 Ky. 228, 94 S. W. 623.] It concluded: "We do not think the act is in conflict with the Federal Constitution."

tending the same school." Even if the words in the body of the act were doubtful or obscure, the title may be looked to in aid of construction. Smythe v. Fiske, 23 Wall. 374, 23 L. ed. 47.

Undoubtedly, the general rule is that one part of a statute may be stricken down as unconstitutional and another part, distinctly separable and valid, left in force. But that general rule cannot control the decision of this case.

L. ed. 588, 590, 7 Sup. Ct. Rep. 469, said that, if one provision of a statute be invalid, the whole act will fall, where “it is evident the legislature would not have enacted one of them without the other."

Upon a review of the judgment below this court says that the statute is "clearly separable, and may be valid as to one class, while invalid as to another;" that "even if Referring to that rule, this court in Huntit were conceded that its assertion of powerington v. Worthen, 120 U. S. 97, 102, 30 over individuals cannot be sustained, still the statute must be upheld so far as it restrains corporations." "It is unnecessary," this court says, "for us to consider anything more than the question of its validity as applied to corporations. We need In Spraigue v. Thompson, 118 U. S. 90, concern ourselves only with the inquiry 94, 95, 30 L. ed. 115-117, 6 Sup. Ct. Rep. whether the 1st section can be upheld as 988, 990, the question arose as to the validity coming within the power of a state over its of a particular section of the Georgia Code. own corporate creatures." The judgment of The supreme court of that state held that the state court is now affirmed, and thereby so much of a section of that Code as made left in full force, so far as Kentucky and its certain illegal exceptions could be disregardcourts are concerned, although such judged, leaving the rest of the section to stand; ment rests in part upon the ground that the this upon the principle that a distinct, sepstatute is not, in any particular, in viola-arable, and unconstitutional part of a stattion of any rights secured by the Federal Constitution. In so ruling, it must necessarily have been assumed by this court that the legislature may have regarded the teaching of white and colored pupils at the same time and in the same school or institution, when maintained by private individuals and associations, as wholly different in its results from such teaching when conducted by the same individuals acting under *In Marshall Field & Co. v. Clark, 143 U. the authority of or representing a corpora- S. 649, 696, 36 L. ed. 294, 311, 12 Sup. Ct. tion. But, looking at the nature or subject | Rep. 495, it was held that certain specified of the legislation, it is inconceivable that the legislature consciously regarded the subject in that light. It is absolutely certain

ute may be rejected and the remainder preserved and enforced. "But," the court took care to say, "the insuperable difficulty with the application of that principle of construction to the present instance is, that by rejecting the exceptions intended by the legis lature of Georgia, the statute is made to enact what confessedly the legislature never meant."

parts of the tariff act of 1890 [26 Stat. at L. 567, chap. 1244] could be adjudged invalid without affecting the validity of an

89.

other and distinct part, covering a different | ute unless agriculturalists and live-stock subject. But that, as the court held, was dealers were excluded from its operation because "they are entirely separate in their mature, and, in law, are wholly independent of each other."

and thereby protected from prosecution. The result is that the statute must be regarded as an entirety, and, in that view, it must be adjudged to be unconstitutional as denying the equal protection of the laws to those within its jurisdiction who are not embraced by the 9th section."

The general principle was well stated by Chief Justice Shaw, who, after observing that, if certain parts of a statute are wholly independent of each other, one part may be held void and the other enforced, said, in Warren v. Charlestown, 2 Gray, 84: "But, if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them." This statement of the principle was affirmed in Allen v. Louisiana, 103 U. S. 80, 84, 26 L. ed. 318, 319, and again in Loeb v. Columbia Twp. 179 U. S. 472, 490, 45 L. ed. 280, 290, 21 Sup. Ct. Rep. 174, 181, cited by the court. In the latter case the court said: "One part [of a statute] may stand, while another will fall, unless the two are so connected or dependent on each

A case very much in point here is that of Connolly v. Union Sewer Pipe Co. 184 U. 6. 540, 565, 46 L. ed. 679, 692, 22 Sup. Ct. Rep. 431, 441. Those were actions upon promissory notes and an open account. The defense was that the notes and the account arose out of business transactions with the Union Sewer Pipe Company, an Ohio corporation doing business in Illinois, and which corporation, it was alleged, was a trust and combination of a class or kind described in the Illinois anti-trust statute. That statute made certain combinations of capital, skill, or acts by two or more persons for certain defined purposes illegal in Illinois. The defense was based in part on that statute, and the question was whether the statute was repugnant to the Constitution of the United States, in that, after prescribing penalties for its violation, it provided by a distinct section (§ 9) that its provisions "shall not apply to agricultural products or live stock while in the hands of the producer or raiser." The transactions out of which the notes and account in suit arose had no connection whatever with agriculture or with the business of raising live stock, and yet the question considered and determined and which the court did not feel at liberty to pass by-was whether the other in subject-matter, meaning, or purentire statute was not unconstitutional by reason of the fact that the 9th section excepted from its operation agricultural products and live stock while in the hands of the producer or raiser. This court held that section to be repugnant to the Constitution of the United States, in that it made such a discrimination in favor of agriculturists or live-stock dealers as to be a denial to all others of the equal protection of the laws. The question then arose, whether the other pro- Now, can it for a moment be doubted that visions of the statute could not be upheld the legislature intended all the sections of and enforced by eliminating the 9th sec- the statute in question to be looked at, and tion. This court held in the negative, that the purpose was to forbid the teaching saying: "The principles applicable to of pupils of the two races together in the such a question are well settled by the same institution, at the same time, whether adjudications of this court. If different the teachers represented natural persons or sections of a statute are independent of corporations? Can it be said that the legis each other, that which is unconstitutional lature would have prohibited such teaching may be disregarded, and valid sections may by corporations, and yet consciously permitstand and be enforced. But, if an obnoxious ted the teaching by private individuals or section is of such import that the other sec- unincorporated associations? Are we to attions, without it, would cause results not tribute such folly to legislators? Who can contemplated or desired by the legislature, say that the legislature would have enacted then the entire statute must be held inop one provision without the other? If not, erative. ... Looking, then, at all the then, in determining the intent of the legis sections together, we must hold that the lature, the provisions of the statute relating legislature would not have entered upon or to the teaching of the two races together by continued the policy indicated by the stat-corporations cannot be separated in its oper

pose that the good cannot remain without the bad. The point is not whether the parts are contained in the same section, for, the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance, whether the provisions are so interdependent that one cannot operate without the other." All the cases are, without exception, in the same direction.

19.

« AnteriorContinuar »