Page images
PDF
EPUB
[ocr errors]

life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The regulations referred to are, “That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances, on land and water, theatres and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.”' In 1883 these regulations were held unconstitutional as applied to the several States.'

In the absence of any such regulation, it is not very clear that inn-keepers and carriers of persons, by land or by water, would be warranted, in law, in discriminating on the ground solely of a difference in race or color, or because of any previous condition. The common law required impartiality in their accommodations, and personal discriminations must be unlawful, unless the presence of the excluded person would be dangerous to others,

or would be justly offensive to their sense of decency or (*285] propriety, or for other reason would *interfere with the

proper enjoyment by others of the accommodations which the innkeeper or common carrier affords. As is said by Mr. Justice Scott, “A railroad company cannot capriciously discriminate between passengers on account of their nativity, color, race, social position, or their political or religious beliefs. Whatever discriminations are made must be on some principle, or for some reason, that the law recognizes as just and equitable, and founded in good public policy.”

Theaters and other places of public amusement exist wholly under the authority and protection of State laws; their managers are commonly licensed by the State, and in conferring the license

[ocr errors]

1 Laws 1875, Ch. 114.

· Civil Rights Cases, 109 U. S. 3. The fourteenth amendment does not, says BRADLEY J., "invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action of the kinds referred to. It does not authorize Congress to

create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws and the action of State officers, executive and judicial, when these are subversive of the fundamental rights specified in the amendment."

3 Chicago, &c., R. R. Co., c. Williams, 55 III. 185, 188.

it is no doubt competent for the State to impose the condition that the proprietors shall admit and accommodate all persons impartially. Therefore State regulations corresponding to those established by Congress must be clearly within the competency of the legislature, and might be established as suitable regulation of police. And the power of the State to regulate the *business of innkeepers and common carriers would be [*286] at least equally plain. But Congress has no corresponding police power to be exercised within the States. And on the other hand, State regulations of the sort, so far as they assume to cover the transportation of passengers from State to State, are void as invasions of the constitutional power of Congress over commerce between the States. 8

Right to Control ono's Property and Actions. Every man controls his own property as he pleases, puts it to such use as he pleases

, improves it or not, as he may choose, subject only to the obligation to perform, in respect to it, the duties he owes to the State and to his fellows. The State cannot substitute its judgment for his as to the use he should make of it for his own advantage. Neither can the State regulate his dress or his table,

'The Mississippi legislation of 1873, the intent of which was, “that all persons may have equal accommodations in the vehicles of common carriers, at the inns, hotels, theatres, and other public places of amusement, upon the terms of paying the usual prices therefor," was fully sustained, against all the objections that could he suggested, in Donnell o. State, 48 Miss. 661.

Where a skating rink may be kept without a license, a negro may be excluded at the pleasure of the owner. There is no duty to the public. Bowlin o. Lyon, 67 Ia. 536.

* Slaughter House Cases, 16 Wall. 36; U. S. o. Cruikshank, 92 U. S. 542. Civil Rights Cases, 109 U. 8. 3.

Hall 0. DeCuir, 95 U. S. 485. The statute bad been previously sustained in the State courts. De Cuir e. Benson, 27 La. Ann. 1. The suit was brought for refusal to permit the

plaintiff, a colored woman, to enter the ladies' cabin of defendant's steamboat, and compelling her to go into the "colored bureau," so called, and take her meals there. The case set. tles the point of State law, that no such discrimination is lawful within the State jurisdiction. An act abro. gating the common law requirement of equal treatment by carriers is void so far as it affects inter-state com

Brown o. Memphis, &c., R. R. Co., 5 Fed. Rep. 499. See, Tbe Sue, 22 Fed. Rep. 843. And, see, Coger o. North West Union Packet Co., 37 Iowa, 145, where the Congressional Civil Rights Act of 1866, forbidding similar discriminations, was sustained and enforced as against a company of common carriers navi. gating the Mississippi.

* Gaines o. Buford, 1 Dana, 479, 499; Violett o. Violett, 2 Dana, 323.

merce,

except so far as may be needful for the protection of morality and decency. State laws prohibiting the sale of liquors to be drank on the dealer's premises have the public interest in view, and are justified on that ground. And laws prohibiting women to appear in public in the customary garb of men would be supported, not as regulation of fashion, but as regulations to prevent a practice likely to lead to serious abuses, and to be resorted to for the worst purposes.

The right to an Education. It is a part of every person's civil liberty to provide for his own education as he may have the

means. Among the duties of imperfect obligation im(*287] posed upon *parents is that of providing suitable educa

tion for their children. This duty is usually assumed by the State to this extent: That it places or intends to place the means of education within the reach of all, providing schools which all can attend, and in some cases making instruction in these schools perfectly free to all. But the right to an education at the expense of the public is not, as against the State, a legal right at all, unless made so by the Constitution. To furnish to its citi- . zens the means of an education is a duty which the State, at its option, will assume or decline; and when the duty is assumed, the State, in the provision it makes, will go so far as its law makers Bhall think proper, and no further. The provision made to-day may, perhaps, be repealed to-morrow; and though the repeal may seem in the highest degree impolitic, those who may suffer from it cannot deny to it competent force. But any provisions for education which are made by the Constitution, the people, as a matter of right, may claim the benefit of, unless legislation is necessary to give them effect. Sonne constitutional provisions are self-executing. and if these measure out the State's bounty for education, the legislature cannot restrict it; others cannot have effect without legislation; and where that is the case, the bounty intended may possibly be withheld.'

It may possibly be found, also, when the State has made provision for education, that it has done so with unlawful discriminations. So long as slavery existed, it was customary, in establishing and providing for the support of schools, to discriminate

1

1

Respecting self-executing constitutional provisions, see Cooley, Coast Lim. 99-102.

in the advantages given, throwing open some schools to children generally, but denying admission to colored children. The right to do this was affirmed in Massachusetts, upon the broad ground that the State had undoubted right to select the objects of its bounty,' and was generally conceded elsewhere. Since then the fourteenth amendment to' the federal Constitution has been adopted, and it is now held that when the provision is made for education, it must be impartial. The provision gives to the whole people certain rights, and to single out a certain portion by the arbitrary standard of color, and say that these shall not have rights which are possessed by others is said to deny to them *" the eqnal protection of the laws” and is con- [*288] seqnently forbidden.' But no right is violated when colored pupils are merely placed in different schools, provided the schools are eqnal, and the same measure of privilege and justice is given in each.

A teacher may violate the right to instruction in the public schools by refusing to instruct those who lawfully come. Whether an action would lie against the teacher for such refusal, or whether the remedy would not be confined to an appeal to the governing board, is left in doubt on the authorities. It would seem, however, that the refusal was a plain violation of an individual right, and, as such, was actionable. The teacher

[ocr errors]

Roberts o. Boston, 5 Cush. 198. See Van Camp o. Board of Education, 9 Ohio, (n. 8.) 406.

* Ward o. Flood, 48 Cal. 36. See People o. Board of Education, 18 Mich. 400: Clark 0. Board of Directors, 24 Iowa, 266; Smith o. Keokuk, 40 lowa, 518; Dove o. School District, 41 Iowa, 689. Children of Chinese parents who were born and have al. ways lived in this country must be admitted Tape 0. Harley, 66 Cal. 473; Bertonneau 0. Directors, 3 Woods. 177; U. 8. o. Buntin, 10 Fed. Rep. 730; People 0. Gallagber, 93 N. Y. 438. So an

act providing that whites in & city sball be taxed for wbite schools, and blacks for black schools, which results in gross inequality of school

privileges, is unconstitutional. Clay. brook 0. Owensboro, 16 Fed. Rep. 297. In Illinois & school board has no power to set apart a single school in a city and oblige all colored chil. dren to attend it alone. People o. Board of Education, 101 Ill. 308. See Board of Education 0. Tinnon, 26 Kan. 1.

• Cory o. Carter, 48 Ind. 327; State 0. McCann, 21 Ohio, (N. 5.) 198; County Court o. Robinson, 27 Ark. 116. See State o. Duffy, 7 Nev. 342. Otherwise in New Jersey and Pennsylvania since 1881. Pierce o. Un. Dist. Trustees, 46 N. J. L. 76; Kaine 0. Com. 101 Penn. St. 490.

* In Spear 0. Cummings, 23 Pick. 224, it was decided that no action would lie against a teacher by the

might also violate the right to instruction by inflicting punishment for something not within his jurisdiction;'or by arbitrarily subjecting the pupil to ridicule and disgrace; or by excluding him from school without justification. The teacher, as is said elsewhere,' is vested with judicial discretion in the management of his school, but he must not abuse this, or exceed his powers

. He is a judge with limited authority, not an antocrat.

School committees or trustees may also deprive individ[*289] uals of *their rights in schools, through regulations which

demand things in themselves unreasonable. Under the general authority usually conferred upon these boards to prescribe the rules and laws for the control of schools, their powers are no doubt very extensive, but in the nature of things there are some limits. The general principles of constitutional law undoubtedly

. govern their action, as they do the action of higher authorities; and whatever would violate those principles would be an excess of power on their part. It has sometimes been claimed that the principle of religious liberty was violated by regulations for the reading of the common version of the Bible in the public schools against the objections of the parents or guardians of some

[ocr errors]

parent whose child the former refused a criminal assault; and that the duty to receive into the scbool and instruct. of the child under the circumstances His remedy, it was said, was to ap- is to obey his father. This is good peal to the school committee. It is sense. See Sewell o. Board of Eduintimated in the same case that no ac- cation, 29 Ohio, (N. 8.) 89, in which it tion would lie against the committee was decided that instruction in elocuif the teacher were acting under their tion might be made compulsory in orders, their powers being judicial. schools, and a pupil expelled for fail. To the game effect is Donahoe v. Rich. ing to be prepared with a rhetorical ards, 38 Me. 376. And see Learock exercise at a time designated; and o. Putnam, 111 Mass. 499. In Roe o. State o. Webber, 108 Ind. 31, where Deming, 21 Obio, (N. B.) 666, it is held a similar rule is laid down as to the that such an action by the father will study of music. lie; but in Stephenson 0. Hall, 14 2 See ante, p. 198. Also, Anderson Barb. 222, it is said it should be o. State, 3 Head, 455; Lander e. Sea. brought by the child himself.

ver, 32 Vt. 114. 'In Morrow v. Wood, 35 Wis. 59, 3 Such reasonable rules must not be S. C. 17 Am. Rep. 471, the Supreme unreasonably enforced. Here as to Court of Wisconsin declare that tardiness. Ferticho. Michener, 111 where a child attends school directed Ind. 472. Such rules cease to operate by his father to pursue certain studies after parental control is resumed after only which are taught in the school, school bours. Here a rule forbidding and the teacher punishes him because attending parties. State o. Osborne, he will not take up others also, this is 24 Mo. App. 309.

« PreviousContinue »