The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1874-12-01

While the above constitution was in force the
Legislature provided Tor a general common school
system, the l02d section of which act was as fol-
lows: when any school is supported I'm any
degree by the public school fund, or by taxa
ton, 50 long as the money so derived shall be
expended therein, such school shall be Open
and free to all the white children resident within
the district, over I'VE and under twenty-One
years of age Chapter 10, Z. y, 1913. ID. 32l.
In the case of Lewis vs.. Henly, ? Ind, 1872, this
court was required TO place "a construction upon
the above quoted section, and 10 was hsld that
negro children were moi entitled TO admission
10 the schools wi b the white children, and that
the legislature had the right under the constitu-
I on TO exclude negro children from our public
schools. II as further held that, although the
negroes might be entitled 10 share in the funds
derived rom the sale OF lands donated by Con
gresS, yet they would have 10 do so In separate
schools, ana not in schools with white children.
Both constitutions provided for a general and
uniform system of common schools; both pro-
vided that the tuition should be free and the
SSc anp sqnaliy open 70 all B0th constitutions
the legislature, under the constitution of 1916,
had the right TO exclude the negroes f om the
TO see why II may not be done under the pres
ent constitution.
Having reached the true construction of the
constitution of this state, as il came from the
hands OF Its trainers, and received the sanction
OF her qualified voters, The next step is 10 hnd
out the extent OF its qualification or change
by the constitution OF the United states.
BEARING OF UNITED STATES CONSTITUTION.
Section 2 of article 4, of the constitution o. the
United States declares, "that the citizens OF each
state shall be entitled TO all privileges and i'm
munities of citizens in the several states.'
This section, at an early date, received a con-
struction in the case of Corfield VS.. .Coryell,
which has ever since been recognized and APP
proved. 1t relates only to "thoSe privileges and
immuoities which are fundamentals" and
which may all "be comprehended un er the
fOllJWtng head: protection by the govern ment,
with the right To acquire and posses property OF
every kind. and TO pursue and obtain happiness
and safety, subject nevertheless, to such res
general good of the whole"
In the slaughter house cases, the Supreme
COur of IN United States said, .its sole purpose
was to declare to the several states, that what
ever those rights, as you g anthem to our own
citizens, or as you limit or qualify, or impose
restrictions on their exercise. the same neither
of citizens of other states within your iuriSdic-
uOn." 1t did not compel the state, INTO whicl
the citizens of mother state removed, to allow
him the exercise of the same rights which he
Corfield vs.. Coryell, 4 Wash. Cir. ct. Rep, 81:
Slaughter House Cases, l6 Wal. 20, n; Bradwell
Us. IRE state, Id. lSS; Ward VS.. Maryland, IL Id.
$50; Conner ct al. vs.. Ellio { ct al. Is, How. SOL
Brown VS.. Maryland, II Wheat, 1919; People VS..
Brady, 40 Cal. 1913; story ON the Constitution,
secs l.S5, 1905; Cooley's Cons i~tutional Lin. Is,
Is. S97; Potter's Dwarris on Stat. 525, 528; Sears VS.
The Board, 30 Ind. 267: The JefferSonVile r. X.
Co. VS.. Hendricks, 81 Ind. IS. .
1t is well settled ny repeated decisions of the
federal and state courts that with the excep-
ton OF the limitations imposed upon the pow
ttS Il II SlaltS DN NCGklOn ten Oh article one
of the con titutiOa of the United States
the several states were left as
before the federal union was formed, wi h full
power to declare the rights Of their citizens,
without interference from the federal govern
Iaent. 1t is a familiar rule of construction
of the constitution of the uniOr, that the
sovereign powers vested in the state gov
ernmentS by their respective constitutions
unaltered and unimpaired, except
so far as they were granted to the government of
the United states. In one of the states of the
union, colOred children were entitled TO admis-
sion into schools for white children, and to be
taught with white children, and yet, if a person
residing in such state should remove into some
other state, where such rights denied, the right
so exercised in the state from which the person
removed would be lost, because, it was not one
of those fundamental rights which accompanies
the person but a domestic regulation exclusively
within the constitutional and legislative power
of each state, and to be regarded In the nature of
a domestic regulation necessary for the good of
the Waole people, or which the good of the peO-
pie of one state. in their sovereign judgment, re-
quired to be different from the regulation in
another, as pest securing the general comfort
Story on the Constitution, secs 1855, 1909;
Cooley's Const. Linn. 573, 574; 2 Kent's Com. side
Alger, Cush. "a: The City of New York VS.. Milu,
IL Pet. lS9; Slaughter House Cases, rs Wal. 81:
Bradwell VS.. The State, Id .l3O; Thayer VS.. Hedges,
p Ind. 81; Potter's Dwarris on Stat. 352, 4j2, ASS,
46l.
1t is very plain that the tenth amendment of
ceive such construction as will aid the claim ,
the appellee. 1t declares "that the powers no
delegated to the United States, by the censtitu
ton, Nor prohibited by 1T to the state, are re
served TO the states respectively, or to the PEG.
ple;" and the power to fix the qualifications Of
the citizen OF the state, and 10 establish his
rights in the state, is of the powers expressly re-
served to the state by this amendmen for
there is no express Limitation OF the power of
the states, in the federal constitution in this re.
spect, as IL then stood, and such Limitation
could not exist without express mention. Rawle
tion, sec. 1901; Works of Webster, vol. 3, D. 32;
Sooleys Const- Linn, ~; Federalist, 40;
Barron VS.. Baltimore, Z Pet, 243; Smith VS..
Maryland, Is How, II; Pervear VS.. Common
wealth, 3 Wal, 40; Barker VS.. People, 3 Cow,
6S6; James VS.. Commonwealth, II s. q r., Dbl:
Jane VS.. CommonweaIth 2 Met fKvN IS. LIN
Ind, 276; The State ex rel. Lakey, 81 Ind, L.
That the views h~ereinbefore expressed cor
represent the relative powers OF the
federal and state governments at the close of
the great civil war and until after the ratid-
cation of the amendments to the constitution
OF the United States, which followed the termi-
nation of that contest, can not, we think, be
We next proceed to determine whether such
amendments, or either of them, has worked a
change, and, lift has, TO what extent.
The thirteenth amendment was proposed by
Congress on the first day OF February, 1856, and
by the secretary of state 10 have been
neither slavery nor involuntary servitude,
except as a punishment for crime whereof the
exist within the United States, or any place
subject to its jurisdiction; and Congress
shall have power 10 enforce this article by APP
legislation. 3Stat., Davis Sup.1 SIG.
This amendment was to prevent any question
in the future as to the effect of the war, and the
presidents proclamation of emancipation upon
and its oh vious purpose was to forbid
all shades and conditions of African slavery.
House Cases, l6 VA s., So.
1t had no other office; and its real effect was
more Tor the future than the present. AS to the
matter of social and political rights the African
was left just where section 81, article 1, of our
state constitution left him and subject to all the
lnconVen1enc1es and burdens incident TO his
color and race, except his former one of servi-
tude. He was a person whose place and office,
in the body polite, was yet to be designated and
established. He possessed no political rights. in
the usual and proper sense OF that term through,
or had none conferred by this enactment.
Following this constitutional amendment, the
civil rights bill of April 8, 1866, was enacted by
the first section of which declares who
are citizens of the United States, and specifies
certain rights which shall be accorded to such
in the states and territories, and the
residue is made up of pains and penalties for
OF the lights sought TO be conferred,
and the machinery Tor enforcing its provisions.
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