ation from those in the same section that Some stress is laid upon the fact that forbid such teaching by individuals and un- when Berea College was incorporated the incorporated associations. Therefore the state reserved the power to alter, amend, or court cannot, as I think, properly forbear to repeal its charter. If the state had, in consider the validity of the provisions that terms, and in virtue of the power reserved, refer to teachers who do not represent cor- repealed outright the charter of the college, porations. If those provisions constitute, as, the case might present a different question. in my judgment, they do, an essential part But the charter was not repealed. The corof the legislative scheme or policy, and are poration was left in existence. The statinvalid, then, under the authorities cited, the ute here in question does not purport to whole act must fall. The provision as to amend the charter of any particular corporacorporations may be valid, and yet the other tion, but assumes to establish a certain rule clauses may be so inseparably connected applicable alike to all individuals, associa with that provision and the policy under- tions, or corporations that assume to teach lying it, that the validity of all the clauses the white and black races together in the necessary to effectuate the legislative intent same institution. Besides, it should not be must be considered. There is no magic in assumed that the state intended, under the the fact of incorporation which will so trans-guise of impliedly amending the charter of form the act of teaching the two races in a private corporation, to destroy, or that it the same school at the same time that such could destroy, the substantial, essential purteaching can be deemed lawful when con- poses for which the corporation was created, ducted by private individuals, but unlawful and yet leave the corporation in existence. when conducted by the representatives of The authorities cited by this court, in its corporations. opinion, establish the proposition that, under the reserved power to amend or alter a charter, no amendment or alteration can be made which will “defeat or substantially impair the object of the grant." Holyoke Water Power Co. v. Lyman, 15 Wall. 500, 21 L. ed. 133; Close v. Glenwood Cemetery, 107 U. S. 466, 476, 27 L. ed. 408, 412, 2 Sup. Ct. Rep. 267. There is another line of thought. The state court evidently regarded it as necessary to consider the entire act; for it adjudged it to be competent for the state to forbid all teaching of the two races together, in the same institution, at the same time, no matter by whom the teaching was done. The reference at the close of its opinion, in the words above quoted, to the fact that In my judgment the court should directly the defendant was a corporation, which meet and decide the broad question presented could be controlled as the state saw fit, was, by the statute. It should adjudge whether as already suggested, only incidental to the the statute, as a whole, is or is not unconsti main question determined by the court as to tutional, in that it makes it a crime against the extent to which the state could control the state to maintain or operate a private the teaching of the two races in the same institution of learning where white and institution. The state court upheld the au- black pupils are received, at the same time, thority of the state, under its general police for instruction. In the view which I have power, to forbid the association of the two as to my duty I feel obliged to express my races in the same institution of learning, opinion as to the validity of the act as a although it adjudged that there were limi- whole. I am of opinion that, in its essential tations upon the exercise of that power, parts, the statute is an arbitrary invasion of and that, under those limitations, 8 4 the rights of liberty and property guaranteed was invalid, because unreasonable and op- by the 14th Amendment against hostile state pressive. If it had regarded the au- action, and is, therefore, void. thority of the state over its own corporations as being, in itself, and without reference to any other view, sufficient to sustain the statute, so far as the defendant corporation is concerned, it need only have said that much, and omitted all consideration of the general power of the state to forbid the teaching of the two races together, by any body, in the same institution at the same time. It need not, in that view, have made any reference whatever to the 25-mile provision in the 4th section as being "unreasonable and oppressive," whether applied to teaching by individuals or by corporations, or held such provision to be void on that special ground. The capacity to impart instruction to others is given by the Almighty for beneficent purposes; and its use may not be forbidden or interfered with by government,— certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety. The right to impart instruction, harmless in itself or beneficial to those who receive it, is a substantial right of property,-especially, where the services are rendered for compensation. But even if such right be not strictly a property right, it is, beyond question, part of one's liberty as guaranteed against hostile state action by the Constitution of the United States. This court has more than once 99. said that the liberty guaranteed by the 14th Amendment embraces “the right of the citizen to be free in the enjoyment of all his faculties,” and “to be free to use them in all lawful ways." Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; Adair v. United States, 208 U. S. 161, 173, 52 L. ed. 436, 442, 28 Sup. Ct. Rep. 277. If pupils, of whatever race, certainly, if they be citizens,-choose, with the consent of their parents, or voluntarily, to sit together in a private institution of learning while receiving instruction which is not in its nature harmful or dangerous to the public, no government, whether Federal or state, can legally forbid their coming together, or being together temporarily, for such an innocent purpose. If the commonwealth of Kentucky can make it a crime to teach white and colored children together at the same time, in a private institution of learning, it is difficult to perceive why it may not forbid the assembling of white and colored children in the same Sabbath school, for the purpose of being instructed in the Word of God, although such teaching may be done under the authority of the church to which the school is attached as well as with the consent of the parents of the children. So, if the state court be right, white and colored children may even be forbidden to sit together in a house of worship or at a communion table in the same Christian church. In the cases supposed there would be the same association of white and colored persons as would occur when pupils of the two races sit together in a private institution of learning for the purpose of receiving instruction in purely secular matters. Will it be said that the cases supposed and the case here in hand are different, in that no government, in this country, can lay unholy hands on the religious faith of the people? The answer to this suggestion is that, in the eye of the law, the right to enjoy one's religious belief, unmolested by any human power, is no more sacred nor more fully or distinctly recognized than is the right to impart and receive instruction not harmful to the public. The denial of either right would be an infringement of the liberty inherent in the freedom secured by the fundamental law. Again, if the views of the highest court of Kentucky be sound, that commonwealth may, without infringing the Constitution of the United States, forbid the association in the same private school of pupils of the Anglo-Saxon and Latin races respectively, or pupils of the Christian and Jewish faiths, respectively. Have we be come so inoculated with prejudice of race than an American government, professedly based on the principles of freedom, and charged with the protection of all citizens alike, can make distinctions between such citizens in the matter of their voluntary meeting for innocent purposes, simply because of their respective races? Further, if the lower court be right, then a state may make it a crime for white and colored persons to frequent the same market places at the same time, or appear in an assemblage of citizens convened to consider questions of a public or political nature, in which all citizens, without regard to race, are equally interested. Many other illustrations might be given to show the mischievous, not to say cruel, character of the statute in question, and how inconsistent such legislation is with the great principle of the equality of citizens before the law. Of course, what I have said has no reference to regulations prescribed for public schools, established at the pleasure of the state and maintained at the public expense. No such question is here presented and it need not be now discussed. My observations have reference to the case before the court, and only to the provision of the statute making it a crime for any person to impart harmless instruction to white and colored pupils together, at the same time, in the same private institution of learning. That provision is, in my opinion, made an essential element in the policy of the statute, and, if regard be had to the object and purpose of this legislation, it cannot be treated as separable nor intended to be separated from the provisions relating to corporations. The whole statute should therefore be held void; otherwise, it will be taken as the law of Kentucky, to be enforced by its courts, that the teaching of white and black pupils, at the same time, even in a private institution, is a crime against that commonwealth, punishable by fine and imprisonment. "In my opinion the judgment should be reversed upon the ground that the statute is in violation of the Constitution of the United States. Mr. Justice Day also dissents. 147 V. WILLIAM HENRY, High Sheriff of the HABEAS CORPus (§ 30*)—GroUNDS FOR RE- Questions respecting the qualifications of the grand jurors, open to the accused in the original case, cannot, after conviction, be raised collaterally by habeas corpus, which may not, in this manner, usurp the functions of a writ of error. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. 25; Dec. Dig. § 30.*] [No. 27.] Argued October 29, 1908. Decided November 16, 1908. territory, assigning, among other errors, the overruling of the plea in abatement. The judgment of the lower court was affirmed by the supreme court on October 23, 1906, and a death warrant thereupon was issued by the governor of the territory, commanding the high sheriff to execute the sentence of death on January 22, 1907. No writ of error was sued out on the foregoing judgments of the supreme court. The plaintiff in error, however, six days before the date fixed for his execution, filed a petition for habeas corpus in the supreme court of the territory, basing his claim for discharge from custody upon the same facts set forth in the plea of abatement and in the agreed statement of facts. The petition alleged that, for the reason of the disqualification of eight members N ERROR to the Supreme Court of the Territory of Hawaii to review a judg-ofd that the trial court was without juris ment discharging a writ of habeas corpus Affirmed. The facts are stated in the opinion. S. Browne, and A. S. Humphreys for plain tiff in error. Messrs. Charles R. Hemenway and M. F. Prosser for defendant in error. Mr. Justice Moody delivered the opinion of the court: This is a writ of error directed to a judgment of the supreme court of the territory of Hawaii, discharging a writ of habeas corpus and remanding the petitioner to the custody of the sheriff. The plaintiff in error was indicted for murder by a grand jury at a term of a circuit court of the territory, held in August, 1905. The grand jury was composed of sixteen members. A plea in abatement was seasonably filed, alleging that eight of the grand jurors were not citizens of the United States or of the territory,-a qualification prescribed by the laws of the territory. The territory joined issue on this plea. The parties then agreed upon the facts upon which it was based; namely, that the eight grand jurors questioned were citizens only by virtue of judgments of naturalization in a circuit court of the territory. The plea, with the agreed facts, raised the question of the jurisdiction of the circuit courts of the territory to naturalize aliens. Under a statute of the territory that question was certified to the supreme court, and that court held that the circuit courts of the territory had jurisdiction to naturalize, and that the grand jury possessed the necessary qualifications. Thereupon the trial judge overruled the plea in abatement, and an exception was taken. After due proceedings, plaintiff in error was found guilty as charged, and, on March 22, 1906, sentenced to death. Thereupon he prosecuted a writ of error to the supreme court of the the grand jury, the indictment was void, diction to proceed against him under it. The writ of habeas corpus was discharged and the petitioner remanded to the custody of the sheriff, and to this judgment the pres ent writ of error is directed. The principal question argued before us by counsel is, whether the eight members of the grand jury, whose qualifications were *questioned, were naturalized by courts having the authority to naturalize aliens. But we find no occasion to decide or consider this question. If the plaintiff in error desired the judgment of this court upon it, he should have brought a writ of error to the judgment of the supreme court of the territory which passed upon it in affirming the judgment of conviction in the trial court. He may not lie by, as he did in this case, until the time for the execution of the judgment comes near, and then seek to raise collaterally, by habeas corpus, questions not affecting the jurisdiction of the court which convicted him, which were open to him in the original case, and, if properly presented then, could ultimately have come to this court upon writ of error. questionably, if the trial court had exceeded its jurisdiction, a prisoner held under its judgment might be discharged from custody upon a writ of habeas corpus by another court having the authority to entertain the writ (Ex parte Lange, 18 Wall. 163, 21 L. ed. 872; Ex parte Siebold, 100 U. S. 371, 25 L. ed. 717; Ex parte Yarbrough, 110 U. S. 651, 28 L. ed. 274, Sup. Ct. Rep. 152; Ex parte Wilson, 114 U. S. 417, 29 L. ed. 89, 5 Sup. Ct. Rep. 935), though even in a case of this kind a court will sometimes refrain from releasing a prisoner upon writ of habeas corpus, and will remit him to his remedy by writ of error (Riggins v. United States, 199 U. S. 547, 50 L. ed. 303, 26 Sup. Ct. Rep. 147; Urquhart v. Brown, 205 U. S. 179, 51 L. ed. 760, 27 Sup. Ct. Rep. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Un 42 459). But no court may properly release | passes annually to the complainants is not a prisoner under conviction and sentence brought within the original jurisdiction of of another court, unless for want of juris-a Federal circuit court as one arising under diction of the cause or person, or for some the Constitution or laws of the United States, within the meaning of the act of other matter rendering its proceedings August 13, 1888 (25 Stat. at L. 434, chap. void. Where a court has jurisdiction, mere errors which have been committed in the 866, U. S. Comp. Stat. 1901, p. 509), by allegations in the bill that the refusal to course of the proceedings cannot be correct comply with the contract is based upon the ed upon a writ of habeas corpus, which may provisions of the act of Congress of June not, in this manner, usurp the functions of 29, 1906 (34 Stat. at L. 584, chap. 3591, U. a writ of error. Ex parte Parks, 93 U. S. S. Comp. Stat. Supp. 1907, p. 892), and 18, 23 L. ed. 787; Ex parte Siebold, supra, that such act does not prohibit the giving Ex parte Yarbrough, supra, 651, 653; of passes under the circumstances of the Ex parte Wilson, supra, 421; Re Delgado, case, and, if construed as having such ef 140 U. S. 586, 35 L. ed. 578, 11 Sup. Ct. fect, violates U. S. Const., 5th Amend., by denying due process of law. Rep. 874; United States v. Pridgeon, 153 U. S. 48, 59, 63, 38 L. ed. 631, 635, 637, 14 Sup. Ct. Rep. 746; Andrews v. Swartz, 156 U. S. 272, 276, 39 L. ed. 422, 423, 15 Sup. Ct. Rep. 389; Riggins v. United States, Submitted October 13, 1908. Decided Nosupra; Felts v. Murphy, 201 U. S. 123, 50 L. ed. 689, 26 Sup. Ct. Rep. 366; Valentina v. Mercer, 201 U. S. 131, 50 L. ed. 693, 26 Sup. Ct. Rep. 368. 375; *These well-settled principles are decisive of the case before us. Disqualifications of grand jurors do not destroy the jurisdiction of the court in which an indictment is returned, if the court has jurisdiction of the cause and of the person, as the trial court had in this case. Ex parte Harding, 120 U. S. 782, 30 L. ed. 824, 7 Sup. Ct. Rep. 780; Re Wood, 140 U. S. 278, 35 L. ed. 505, 11 Sup. Ct. Rep. 738; Re Wilson, 140 U. S. 575, 35 L. ed. 513, 11 Sup. Ct. Rep. 870. See Re Moran, 203 U. S. 96, 104, 51 L. ed. 105, 108, 27 Sup. Ct. Rep. 25. The indictment, though voidable, if the objection is seasonably taken, as it was in this case, is not void. United States v. Gale, 109 U. S. 65, 27 L. ed. 857, 3 Sup. Ct. Rep. 1. The objection may be waived, if it is not made at all or delayed too long. This is but another form of saying that the indictment is a sufficient foundation for the jurisdiction of the court in which it is returned, if jurisdiction otherwise exists. That court has the authority to decide all questions concerning the constitution, organization, and qualification of the grand jury, and, if there are errors in dealing with these questions, like all other errors of law committed in the course of the proceedings, they can only be corrected by writ of error. Judgment affirmed. (211 U. S. 149) LOUISVILLE & NASHVILLE RAILROAD V. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 841; Dec. Dig. § 299.*] A [No. 37.] vember 16, 1908. PPEAL from the Circuit Court of the United States for the Western District of Kentucky to review a decree overruling a demurrer to and granting the relief prayed for in a bill to compel specific performance. Reversed and remanded with instructions to dismiss the suit for want of jurisdiction. See same case below, 150 Fed. 406. Statement by Mr. Justice Moody: *The appellees (husband and wife), being residents and citizens of Kentucky, brought this suit in equity in the circuit court of the United States for the western district of Kentucky against the appellant, a railroad company and a citizen of the same The object of the suit was to compel state. the specific performance of the following contract: Louisville, Ky., Oct. 2d, 1871. The Louisville & Nashville Railroad Com pany, in consideration that E. L. Mottley and wife, Annie E. Mottley, have this day released company from all damages or claims for damages for injuries received by them on the 7th of September, 1871, in consequence of a collision of trains on the railroad of said company at Randolph's Station, Jefferson County, Kentucky, hereby agrees to issue free passes on said railroad and branches now existing or to exist, to said E. L. & Annie E. Mottley for the remainder of the present year, and thereafter to renew said passes annually during the lives of said Mottley and wife or either of them. The bill alleged that in September, 1871, ERASMUS L. MOTTLEY and Annie E. plaintiff's, while passengers upon the de Mottley, His Wife. FEDERAL COURTS (299) JURISDICTION fendant railroad, were injured by the defendant's negligence, and released their respective claims for damages in consideration of the agreement for transportation during their lives, expressed in the contract. It For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *150 is alleged that the contract was performed | Bridge & Mfg. Co. v. Otoe County, 120 U. by the defendant up to January 1, 1907, S. 225, 30 L. ed. 623, 7 Sup. Ct. Rep. 552; when the defendant declined to renew the Blacklock v. Small, 127 U. S. 96, 105, 32 passes. The bill then alleges that the re- L. ed. 70, 73, 8 Sup. Ct. Rep. 1096; Cameron fusal to comply with the contract was based v. Hodges, 127 U. S. 322, 326, 32 L. ed. 132, solely upon that part of the act of Con- 134, 8 Sup. Ct. Rep. 1154; Metcalf v. Watergress of June 29, 1906 (34 Stat. at L. 584, town, 128 U. S. 586, 587, 32 L. ed. 543, 9 chap. 3591, U. S. Comp. Stat. Supp. 1907, Sup. Ct. Rep. 173; Continental Nat. Bank p. 892), which forbids the giving of free v. Buford, 191 U. S. 120, 48 L. ed. 119, 24 passes or free transportation. The bill Sup. Ct. Rep. 54. further alleges: First, that the act of Congress referred to does not prohibit the giving of passes under the circumstances of this case; and, second, that, if the law is to be construed as prohibiting such passes, it is in conflict with the 5th Amendment of the Constitution, because it deprives the plaintiffs of their property without due process of law. The defendant demurred to the bill. The judge of the circuit court overruled the demurrer, entered a decree for the relief prayed for, and the defendant appealed directly to this court. Mr. Henry L. Stone for appellant. Messrs. Lewis McQuown and Clarence U. McElroy for appellees. There was no diversity of citizenship, and it is not and cannot be suggested that there was any ground of jurisdiction, except that the case was a "suit . arising under the Constitution or laws of the United States." 25 Stat. at L. 434, chap. 866, U. S. Comp. Stat. 1901, p. 509. It is the settled interpretation of these words, as used in this statute, conferring jurisdiction, that a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some pro Mr. L. A. Shaver for Interstate Commerce vision of the Constitution of the United Commission as amicus curiæ. Mr. Justice Moody, after making the foregoing statement, delivered the opinion of the court: Two questions of law were raised by the demurrer to the bill, were brought here by appeal, and have been argued before us. They are, first, whether that part of the act of Congress of June 29, 1906 (34 Stat. at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892), which forbids the giving of free passes or the collection of any different compensation for transportation of passengers than that specified in the tariff filed, makes it unlawful to perform a contract for transportation of persons who, in good faith, before the passage of the act, had accepted such contract in satisfaction of a valid cause of action against the railroad; and, second, whether the statute, if it should be construed to render such a contract unlawful, is in violation of the 5th Amendment of the Constitution of the United States. We do not deem it necessary, however, to consider either of these questions, because, in our opinion, the court below was without jurisIdiction of the cause. Neither party has questioned that jurisdiction, but it is the duty of this court to see to it that the jurisdiction of the circuit court, which is defined and limited by statute, is not exceeded. This duty we have frequently performed of our own motion. Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382, 28 L. ed. 462, 463, 4 Sup. Ct. Rep. 510; King Iron States. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution. In Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654, the plaintiff, the state of Tennessee, brought suit in the circuit court of the United States to recover from the defendant certain taxes alleged to be due under the laws of the state. The plaintiff alleged that the defendant claimed an immunity from the taxation by virtue of its charter, and that therefore the tax was void, because in violation of the provision of the Constitution of the United States, which forbids any state from passing a law impairing the obligation of contracts. The cause was held to be beyond the jurisdiction of the circuit court, the court saying, by Mr. Justice Gray (p. 464): "A suggestion of one party, that the other will or may set up a claim under the Constitution or laws of the United States, does not make the suit one arising under that Constitution or those laws." Again, in Boston & M. Consol. Copper & S. Min. Co. v. Montana Ore Purchasing Co. 188 U. S. 632, 47 L. ed. 626, 23 Sup. Ct. Rep. 434, the plaintiff brought suit in the circuit court of the United States for the conversion of copper ore and for an injunction against its continuance. The plaintiff then alleged, for the purpose of showing jurisdiction, in substance, that the defendant would set up in |