The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-20

hibitive clauses of the amendments we're
always under the protection, primarily, of
the States, while rights created by or derived
from the United States nave always been,
and, in the nature OF things. should always
be, primarily under the protection of the
general government. Exemption from race
discrimination in respect of the civil rights
which are fundamental in citizenship in a
republican government, is, as we have seen
new constitutional right, created by the
nation, with express power, in Congress, by
legislation, to enforce the constitutional pro-
vision from which it is derived. IT, in some
sense, such race discrimination is a denial
OF the equal protection OF the laws within
the letter of the last clause of the first sec
ton, it cannot be possible that a mere pro
hibtion upon State denial OF such equal pro-
lection to persons within its jurisdiction, or
a prohibition upon State laws abridging
the privileges and immunities of citizens OF
the United States takes from the nation the
power which it has uniformity exercised OF
protecting by primary, direct legislation,
those privileges and immunities which eX
listed under the constitution before the adop-
ton of the Fourteenth amendment, or which
have been created by that amendment in
behalf of those thereby made citizens of
their respective States.
1t was said OF bred Scott vs.. Sandford
that this court, in that case, overrued the
action of two generations, virtually inserted
a new clause in the constitution, changed its
character, and made new departure in the
workings of the federal government NAV
be permitted to say that if the recent amend
ments are so construed that Congress may
not. in its own discretion, and independent
ly of the action or non-action of the States,
provide by legislation of a primary and
direct character for the security OF rights
created by the national constitution; if it be
adjudged that the obligation to protect the
fundamental privileges and immunities
granted by the Fourteenth amendment to
citizens residing in the several States
rests, primarily, not on the nation,
but on the States; if it be further
adjudged, that individuals and corporations,
exercising public functions may, without
Liability to direct, primary legislation on the
part of Congress, make the race of citizens
the ground for denying them that equality
of civil rights which the constitution ordains
as principle of republican citizenship then,
not only the foundations upon which the
national supremacy has always securely
rested viii be materially disturbed, but we
shall enter upon an era of constitutional
law when the rights OF freedom and Ameri-
can citizenship cannot receive from the ma
ton that efficient protection which hereto
fore was accorded to slavery and the rights
OF the master.
A CASE IN POINT.
But if it were conceded that the power OF
Congress could not be brought into activity
until the rights specified in the act of 1875
had been abridged or denied by some State
law State action, l maintain that the de-
cision of the court is erroneous. There has
been adverse State action thin the Four
teenth amendment as heretofore interpreted
by this court. I aIlude to Ex-parte
Virginia, supra. 1t appears, in that
case, that one Cole judge of
county court. was charged with the duty by
the laws of Virginia of selecting grand and
petit jurors. The law of the State did not
authorize or permit him. In making such Sc
lections, to discriminate against colored citi-
zens because of their race. But he was in
dicted in the federal court, under the act OF
1875, for making such determinations. The
Attorney general of Virginia contended be-
fore us that the State had done its duty, and
had not authorized or directed that county
judge to do what he was charged with hav
ing done, and, consequently, that the State
had not denied to the colored race the equal
protection OF the laws, and the act OF Cole
must therefore, be deemed his individual
act in contravention of the will of the State.
Plausible as this argument was it failed to
convince this court, and, after saying that
the Fourteenth amendment had reference to
the political body denominated a State, by
whatever instruments or in whatever modes
that action may be taken," and that State
authorities, and can act in no other way, we
proceeded:
The constitutional provision, therefore, must
mean that no agency of the State or of the off
GERS or agents by whom its powers are exerted,
shall deny to any person within Its jurisdiction
the equal protection of the laws. Whoever, by
virtue of public position under a State govern
ment, deprlves another OF property, life. or lib
erty without due process of law. or denies or
takes away the equal protection of the laws,
violates the constitutional inhibition; and, as
he nj Upr 10 n IA a FOR no and
is clothed with the States power, his act is that
of the State. This must be so, or the cOnstitu-
tiOnal prohibition has no meaning. Then the
State has clothed one OF its agents with power
to annul evade 1T. But the constitutional
amendment was ordained for a purpose II was
to secure equal rights 70 all persons, and, to in
sure to all persons the enjoyment OF such rights,
power was given to Congress to enforce its pro
visions by appropriate legislation. Such legis-
stract thing denomlnated State, but upOn the
persons who are the agents of The state, IN the
denial of tine rights which were intended to be
secured. Zoo U. s., 346-7)
In every material sense applicable to the
practical enforcement of the Fourteenth
amendment, railroad corporations, keepers
of inns, and managers of places of public
amusement are agents of the State, because
amenable, in respect of their public duties
and functions to public regulation 1t
seems to me that, within the principle set
tied in EX- parte Virginia, a denial by these
instrpmentalities of the State to the citizen,
because of his race, OF that equality of civil
rights secured to him by law, is denial by
the State within the meaning OF the Four
teenth amendment. If it be not, then that
race is left, in respect of the civil rights IN
der discussion, practically at the mercy of
corporations and individuals, welding power
under public authority.
But the court says that Congress did not,
in the act of 1866, assume, under the author
itv given by the Thirteenth amendment. to
adjust what may be called the social rights
of men and races in the community. | agree