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

COMMONWEALTH OF KENTUCKY
Plaintiff
VS.. OPINION
BEREA COLLEGE, Defendant
At the October Term, 1904, of this
court the Grand Jury found and re-
turned and indictment against the de-
PENDANT. Berea College, charging 1t
with a violation of a law passed at
the session of 1904 of the General AS
sembly of Kentucky. which law is
commonly known as the Day Bill, and
is entitled as follows:
"An act to prohibit white and color
ed persons from attending the same
school"
The first section of the act pro-
vides: THAT it shall be unlawful
for any person, corporation OF asso-
citation or persons to maintain or
operate any college, school or institu-
ton where persons of the white and
negro races are both received as pu-
pills for instruction, and any person
or corporation who shall operate or
maintain any such college, school or
institution. shall be fined 100000,
and any person who may be convict
ed of violating the provisions of this
act. shall be fined $4,000 for each
day they may operate said school, col
lege or institution, after such convic-
ton"
The fourth section of the act pro
vides that Nothing in this act
shall be construed to prevent any pri-
yate school. college or institution OF
learning from maintaining separate
and distinct branch thereof, in a diff
ferent locality, not less than twenty
five miles distant, for the education
exclusively of one race or color.
The indictment in this case was
found under the first section OF the
act. To the indictment the defendant
college has interposed a demurrer,
and in the argument upon the derur'
rer counsel or the defendant have Wig
orouslv assailed the validity OF the
act urging with much force that II
contrayenes several of the proyis-
ions of the Bill of Rights contained
in the state constitution, and also the
first section of the Fourteenth Amend
ment to. and possibly some other
provisions of the Constitution OF the
United States.
In addition to these objections OF su =
stance some technical CRITICISMS o.
the indictment are offered which VII
he first considered and disposed OF De
fore the more serious objections t'
the indictment are discussed.
II is suggested that, concedlng Iie
validity of the act, the indictment Is
not II ,perly drawn to cover any o.
Tense defined in the act. This CRU
cism is not well founded. Ihe ac'
makes If unlawful for any corporation
~ maintain or operate college,
school or institution where persons Oh
tbe white and negro races are Dolh
received as pupils for instruction.
and this indictment, in almost the eA
act language of the act, charges tha'
Rerea College, being corporation
and owning, maintaining and opera
ting a college. school and INSTITUTION
Of learning. known as Berea College
located in the town OF Berea' Ms No.
son County, Kentucky, dld uhld N..I-r
" and wilfully permit ana leceiS.
both the white and negro races %
npnils for instruction in SAID collese'
school and institution OF learning.
The fair meaning and intendneh.
of This language is that the de1enuaht
Taoeived both races in one and the
cone college located in the town oi
paroa II does not require very VIZ
Int stretch of judicial knowledge loI
a. court 10 know that there couiu
Dot he a separate or distinct pranch
- the college. as much as twenty
&c miles distant from the main CUT
lege and yet be in Berea- -;
Tho SUGGESTION is made that possf
NJ tba Indictment is defective pc
cause it does not expressly sl".e .,t III,
the defendant Goes not come WIZ &c
the exception made by sectloh ioui =,
tine act. Such an Allegation Is no'
necessary. In the case OF Coh,n 70.
McClanahan. two Metc, 8, our N0ui
aft Is we'll settled that where pro
visos and exceptions are contained ~
distinct clauses it is not ne,ess ny
20 aver in the Indictment that me
defendant does not come "i.nlh sne
executions, or to negative Vne P'o'
yisos it contains. ..,ora
II is the opinion OF the court liz
gore that a commission OF the oneno.
sought TO be reached by the lhuic'
mont is sufficiently alleged
Tho court is further OF the opinion
that the defendant College is direct
Iv affected by the act in question
and that it, therefore, is IN posi-
tion to properly raise the cons'i.u
4ional questions which arise under 'he
act.
II Is forcibly urged by the counse
for the defendant, as before stated
that the act under consideration no'
only violates many of the provisions
of the Bill of r ghts contained IN tnt
Constitution of Kentucky, but that Il
also violates the first section Oh tns
Fourteenth Amendment to, and poss'
bly, other sections of the consulu1ion
of the United States.
The sectIous of the Bill OF Right'
which it is urged this act violates sr'
49, ,vhicb secure to all citizens, tn'
right of enjoying and defending tnel
liberty the right of worshiping Al
mighty God, according to the dictates
NJ their conscisnces; the righ. Q
seeking So and purl,uing their safety an'
mnnicating theil. thoughts and opln
IONS the right Of acquiring ana pro
tecting property, and the risn. :
freely and fully speak, write and prin
On any subject. lii,