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

10 SecllOn 70 OF the state COnSllIu-
ton, which reads as follows: "To
guard against transgression of the
high powers which we have delegat-
ed, We declare that everything in this
Bill of Rights is excepted out of the
general powers of government, and
shall forever remain inviolate; and
all laws contrary thereto, or con-
.rary to this constitution shall be
void
If the act under consideration can
be upheld IL must be upon the ground
that its enactment by the Legislature
was a legitimate and proper exercise
of the police power of the state by
mat department of the State Govern
ment
At first blush, it may seem that sec
ton &c of the constitution just quoted
was intended to take away from the
Legislature, the power to exercise
this police power in all cases where
the exercise of it would impair or
tend in any way to impair or infringe
any of the rights guaranteed by the
Bill of Rights. That section 26, how
ever, is not peculiar to the present
constitution of Kentucky. 1t is found
in the first, second and third consu-
tutions of the State which were adopt
ed respectively, in 1892, 1899 and
1850, so that to give that section the
meaning for which the defendants
counsel contend would place the Leg
islature of Kentucky, with reference
to its power to exercise the states
police power, in a position peculiar
alone to this state, and which condi
ton must have existed since the for
nation of the original state govern
ment
The court is of the opinion, that
section &c of the constitution does
rot deprive the Legislature of the
power to enact such measures as
come fairly and legitimately within
the exercise of the police power.
which is inherent in all state govern
ments. That right exists as fully in
Kentucky, as it does in any other
state in the Union. The right is
not dependent for its existence upon
express constitutional sanction.
Where the letter of the constitu-
ticn would prohibit police regulations
which by all the principles of constr
tutional government have been recog-
nized as beneficent and permissible
restrictions upon the individual liber-
ty of action, such regulations will be
upheld by the courts on the ground
that the trainers of the constitution
could not possibly have intended to
| Il y,r;,,o Tho ooyar,roenf Of sO colufa,v
a power, and hence the spirit of the
constitution permits such legislation
although a strict construction of the
letter prohibits" Tiedeman's Limi-
tations of Police Powers, P. 212."
"All authorities agree that the con
stitution presupposes the existenc
Of the police power, and is to be con
strued with reference to that fact
Hare's American constitutional
Law, 766.
The court will not attempt in thi
opinion to take UP seriatim the var
ious sections of the state constitution
or of the constitution of the United
States relied upon by the defendant,
and discuss the bearing of each OF
them on the legislation which is now
assailed by the defendant, but before
the opinion closes several decisions
of the Supreme Court of the United
States, and of the state courts OF
last resort, and the views of eminent
text writer's will be cited wherein the
police power of the state govern
ments, its extent and application, and
the effect upon it of such constitution
al provisions as are relied upon by
defendants counsel have been fully
discussed.
The first section of the Fourteenth
Amendment to the constitution of the
United States reads as follows:
"All persons born or naturalIzed
in the United States, and subject to
the jurisdiction thereof, are citizens
of the United States, and of the state
wherein they reside. No state shall
make or enforce any law which shall
abridge the privileges or immunities
of citizens of the United States; nor
shall any state deprive any person of
life, liberty or property, without
due process of law; nor deny to any
person within its jurisdiction the
equal protection of the laws"
The argument presented by defen-
dant's counsel in support of their con-
tention that the Day Bill contra
venes the inhibitions found in the first
section of the Fourteenth Amendment
may be summarized as follows:
First:-It would abridge the priv
ileges and immunites of citizens of
the United States.
(A) The trustees of the corpora
tion-their privilege to expend their
own money, and their labor in the
establishment and ma ntenaEce
of a private institution for a worthy
object, would be abridged.
OBJ Each and every teacher in
the United States-his or her right
to pursue in Kentucky, the innocent
and laudable occupation of teach.
ing would be abridged.
Co Each and every person in
the United States-his or her right
to seek instruction, elevating in
character, whenever he or she sees
ft, and upon invitation, voluntarily
TO associate, in so far as it may be
necessary for the purpose OF receiv-
ing an education, with any person
of good moral character, with
whom he may so desire to associate
Second its enactment the state
of Kentucky would seek to deprive
persons Of their liberty an1 property
without due process OF l.H.
(A) Teachers: ia RS. - earl
Cues Eviz5 = 10 r-rsgis o. . law
full calling not interfering --...SS as
rights OF others. property risat.
OBJ Pupils: The right to prepare
ones self to earn living by seeking
an education, where the opportuni
t. offers and none objects to hi:
presence--a property right
Co The Trustees-The right t
establish and maintain school II
q property right.