The Richmond climax. (Richmond, Ky.) 1897-1914, 1905-02-22

rs II competent for the Legislature
to deny the freedom of speech mere
ly because the audience consists O
persons of different colors or differ
ent races, when the words spoken anC
the lessons read or recited are entire
ly free from objection?" Similar
questions were propounded by Jus
tic HARLAN in his dissenting opin
ion ia the case of Plessy VS.. Ferguson
| 163 U. S., 537, and the answer giveI
by the majority of the court to sucl
questions then furnish a compile {
answer to the questions
now propounded by defend
ants counsel. The majority OF thC
court said to Justice Harlan:
"The reply to all this is that every
exercise of the police power must be
reasonable and extend only to such
laws as are enacted in good faith, and
not for the annoyance or oppression
of a particular class"
The constant and daily association
of the members of the two races mus.
have been deemed by the Legislature
to be the source of danger, and that
is manifestly what was intended to be
prevented by the adoption of this
statute.
Counsel for defendant suggest that
that to sustain the validity of this
legislation as a proper exercise of the
police power, the court must know,
outside of the statutes and outside of
the Indictment, that the operation
and maintenance of such a school is
Il - 81 30 hA
health, morals or safety" The an
swer to this suggestion is that such
a rule does not obtain and has never
been required in the cases growing
out of what are commonly known as
Separate Coach Bills, which are
founded upon the same general prin-
ciple or policy There is nothing in
the language of those statutes to
show that it is detrimental to public
peace, health, morals or safety, in the
two races riding together in the same
railway coaches, ncT has it ever been
held necessary TO make such an allie
cation in any Indictment drawn I'M
der one of those statutes
The real question is whether or not
the legislation is clearly beyond the
province of the lawmakers. If it is
not their action is conclusive. The
public policy of the state of Kentucky
on this and kindred questions is Civ
en- expression in section 1877 of the
Constitution which requires that sep
arate schools shall be maintained for
white and colored children, in subsec-
ton Z of section 1921 A. of the Ken
oh rarnx-idnC fk0T
no white child shall be permitted to
attend or become a pupil in any
school for colored children, and that
no colored child shall be permitted to
attend or become a pupil in any
school for white children, in subsee-
ton 2 of Section 2099 of the Statutes
which prohibits marriage between
white person and negro or mulatto
and in section 795 of the Statutes
which requires railway companies tc
furnish separate coaches for the trav
ell or transportation of white and col
ored passengers.
The validity of these provisions is
not at this day questioned No court
has every denied their validity, and
theg have been uniformly upheli
upon the grounds Of public policy, anG
IS being a proper exercise OF the
police power. These regulations are
BASED upon racial differences, and Il
uch differences warranted that legis
lation, why will they not warrant
this? If the State of Kentucky is by
constitutional provision prohibited
rom maintaining mixed schools be
cause in the judgment of the trainers
of the constitution the comfort, the
welfare, the morals, the peace of so
ciety-might thereby suffer, can it be
that the state has not the right to
prohibit any of its citizens from VIC
lating this state policy? In the case
of L. & N. r. r. company VS.. Ken
lucky, 161 U. s., 677, the Supreme
Court in affirming a decree of the
Kentucky Court of Appeals said:
"The general rule holds good that
whatever is contrary to public policy
or inimical to the public. interests Is
subject to the police power OF the
state. and in the exertion of such pow
er the legislative control is vested
with a large discretion, which, if e
ercised bonafide for the protection
Of the public. is beyond the reach o.
judicial inquiry"
In view of this recognized polio!
of the state of Kentucky, and the rule
announced by the Supreme Court, il
is extremely difficult to see why the
act now being considered does moi
come fairly within the purview OF
ibis policy and this rule. II any dang
er to tie peac-, the morals or tie
comfort of the society attends tbs
act Of members of the two races
riding together in the same railway
coaches, or grows out of the associa-
ton of the youth of the two races in
attending together the same public
school, can it be certainly said that
no possible danger can result from
the members of both races being
brought into constant contact and in
to the most intimate social asSocia-
ton in the same classes, in the same
school room, under the same teachers
in the same private school?
Some question is made to the effect
that the requirement in the fourth
section of the act which requires a
separate or branch school, for the
education of the other race or color
to be twenty-five miles away is an
unreasonable requiremnt, and there
fore invalidates the entire act. At
tention is called to the fact that the
public schools maintained for the two
races are not required to be separated
by that distance. If it be conceded
that the main question affected by
this legislation, was a proper one for
legislative control, then the legisla
ture necessarily had the power to
make its action with reference to that
question effective. The purpose sought
to be accomplished by this legislation
could have been easily frustrated II
the act had permitted both races tc
be received in different rooms In tbs
same building, or even in different
buildings in the same immediate vi
cinity under the same instructors and
under the same control and manage
ment. The Objectionable constant
contact and intimate association
could have continued. In order tc
make its legislation effective for the
accomplishment of the purpose which
prompted it, and to certainly avoid
the danger sought to be prevented
the Legislature had the right to exer
else some discretion in fixing the dis
lance within which the same institu
ton should undertake the education
of both races. and unless the dis
lance SO fixed is both arbitrary ant