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

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| have been also in conflict with the Fourteenth
amendment because inconsistent with the
fundamental rights of American citizenship:
does not prove that it would have been con
sistent with the Thirteenth amendment.
What has been said is sufficient to show
that the power of Congress under the
Thirteenth amendment is not necessarily re-
strcted to legislation against slavery as an
institution upheld by positive law, but may
be exerted 10 the extent at least, of protect
ing the race, so liberated, against discrimina-
ton, in respect of legal rights belonging to
freemen, where such discrimination is
based upon race.
LEGAL RIGHTS OF CoLoRED PERSONS.
1t remains now to inquire what are the le-
gal rights of colored persons in respect of the
accommodations, privileges and facilities of
public conveyances, inns and places of pub
lie amusement?
First, as to public conveyances on land
and water. In New Jersey Steam Navigation
Company vs. Merchants Bank How 1872,
this court speaking by Mr.. Justice Nelson,
said that common carrier is sin the exer-
else of sort of public Office, and has public
duties to perform, from which he should not
be permitted to exonerate himself without
the assent of the parties concerned" To
the same effect is Mum VS.. Illinois, 81 U. s.
40. In Ocott VS.. Supervisors, 16 Wall, 691,
IL was ruled that railroads are public high
ways, established, by authority of the State,
for the public use; that they are noue the
less public highways because controlled and
owned by private corporations; that it is a
part of the function of government to make
and maintain highways for the conveyance
of the public; that no matter who is the
agent, and what is the agency, the function
performed is that of the State; that although
the owners may be private companies, they
may be compelled to permit the public to
use these works in the manner in which they
can be used that, upon these grounds alone
have the courts sustained the investiture of
railroad corporations with the States
right of eminent domain, or the right of
municipal corporations, under legislative
authority, to assess, levy and collect taxes to
aid in the construction of railroads. SO in
Townshipof Queensbury vs. Culver, 10 Wall.
81, it was said that municipal subscription
of railroad stock was in aid OF the oonstruo-
ton and maintenance Of public highway,
and for the promotion of public use.
Again. in Township of Pine Grove vs.. Tai
cott 10 Wall. 676: Though the corporation
[railroad] was private its work was public,
as much so as if it were to be constructed by
the State" To the like effect are numerous
adjudications in this and the State courts
with which the profession is familiar The
Supreme Judicial Court Of Massachusetts, in
Inhabitants of Worcester VS.. The Western
Railroad Corporation, Met, 566, said, in
reference to a certain railroad; The estab-
lishment of that great thoroughfare is re-
garded as a public work, established by
public authority, intended for the public use
and benefit the use of which is secured to
the whole community, and constitutes,
therefore, like a canal, turnpike, high
way, public easement. 1t is true
that the real and personal property, neces-
sary to the establishment and management
OF the railroad, is vested in the corporation;
Int it is the nnhlip " Erit.
County VS.. Casey, 26 Penn ST, 2S7, the
court, referring to act repeating the
charter of a railroad, and under which the
State took possession Sf the road, said.
speaking by Black, j.: TT is a public
highway, solemnly devoted to public use.
When the lands were taken it was for such
use, or they could not have been taken at all.
Railroads established upon
land taken by the right of eminent domain
by authority Of the Commonwealth, created
by her laws as thoroughfares for commerce,
are her highways. No corporation has prop
erty III Them thought may have franchises
annexed to and eXercSable within them"
In many courts it has been held that because
of the public interest in such q corporation
the lard of railroad company cannot be
levied on and sold under execution by a cred
itor. The sum of the adjudged cases is that
q railroad corporation is government
al agency, created primarily for public pur-
poses, and subject to be controlled for the
public benefit. 1t is upon that ground that
the State when unfettered by contract, may
regulate, in its discretion, the rates of fares
of passengers and freight. And upon this
ground, too, the State may regulate the en-
tire management of railroads in all matters
affecting the convenience and safety of the
public. as for example, by regulating speed,
com polling stops of prescribed length at sta
tons, and prohibiting determinations and
favoritism If the corporation neglect or re-
fEse to discharge its duties to the public. it
may be coerced to do so by appropriate pro-
ceedings in the name or i'll behalf of the
State.
Such being the relations these corpora
| tons hold to the public, it would seem that
| the right OF a colored person to use an i'm
proved public highway, upon the terms &C
corded to freemen of other races, is as funda-
mental in the state of freedom, established in
| this country, as are any OF the rights which
my brethren concede to be SO far funda-
mental as to be deemed the essence of civil
freedom. Personal liberty consists" says
blackstone lin the power of locomGtion, of
| changing situation, or removing ones person
| to whatever places ones own inclination
may direct without restraint. unless by due
course OF law" But of what value is this
right of ocomotion if it may be ciogged by
such burdens as Congress intended by the act
| of 1875 to remove. They are burdens which
lay at the very foundation of the institution
of slavery as it once existed. They are not
| TO be sustained, except upon Ine dSSutnptlOn
that there is still, in this land of universal
| liberty, a class which may yet be discrimi-
mated against even in respect of rights of
character so essential and so supreme that,
deprived of their enjoyment in common
with Others freeman is not only branded
as one inferior and infected, but, in the com
petitions OF life, is robbed of some
OF the most essential means of ex-
istence; and all this solely because
they belong to a particular race which
the nation has liberated. The Thirteenth
amendment alone obliterated the race line,
so far as all rights fundamental in state of
freedom are concerned.
Second, as TO inns. The same general OBJ
servations which have been made as to rail
roads are applicable to inns The word linn"