The Montgomery advertiser., 1907-03-23

Supreme Court, and while Judge Jones. in his opinion. expresses some doubt If the decision of the higher. court in that case is entirely applicable to the Powell case, and covers exactly the same points. he ruled in accordance with the Rigsins decision, leaving the prosecution opportunity to appeal if t
 Naples was confined in the Hunts vile jafi on charge of murder at the time he was iynched.
 Judge Jones filed his opinion in the Powell ease. which is quite elaborate, jn the United states Circhit Court at Huntsville Powell was indicted under Sections 65os-s of the Revised Statutes, for conspiracy to deprive Horace Naples. negro, of the enjoyment of the right to due process. etc. The mat ter came up on demurrers to the indict- ment, which were submitted some time ago.
 Opinion of Judge Jones.
 Judge Jones holds that no right of Naples, under the clause of the Four teenth Amendment, relating to the "equal protection of the laws,' was violated. since that only means that the State must make and execute its laws fairly and impartially, and not discriminate invidiously When the State has obeyed the Constitution in that respect every one Is in the en- joyment of the '"eauai proteetion of the laws" and private persons, in the constitutional sense. cannot deprive anyone of the enjoyment Of 1t The court holds that 1t is different as to the due process" clause, which requires a State, when 1t takes per- son into custody to punish him for crime. to do certain things for him, without which he cannot enjoy due pro- naa l him into court, hearing him and his witnesses, and having jury to pass upon his case.
 Unless this is done, the accused cam not have. the enjoyment of the rights the Constitution intends him to have. and which are secured to him under the Constitution by the use of the term due process of law which has had settled legal meaning for ages; and lawless private individuals by 'ob- structing the operation of the courts functions, prevent enjoyment. In the constitutional sense, of the right se- cured by the Consultation, at the hands of the Stae.
 When the State or its officers vainiy attempt to afford these rights, Con gress may not enter the domain of State power, and seize the States ma chineFy, or create new, rights, or in- terfere with the States authority in any way, but may use the power given 'to enforce" the amendment by punish ing private persons for the attack up- on the constitutional right of a prison- CT to have the courts proceed with his case, as required by the Constitution.
 The court held, however. as did the Supreme Court in the Hodges case, which involved only the thirteenth Amendment. made some strong expres- sions as to the power of Congress un- der the fourteenth amendment, limit ing the power to cases of actual denial by the State, that # might be the su- preme Court intended to settle this question, as that case was submitted at the same term as the Higgins case, which was dismissed on a technicaIity, involving the same indictment. and the Supreme Court might have had 1t Tn mind. t
 If the Circuit Court erred in solving its doubts against Powell. 1t would do him injustice. and put thS government to much needless expense and cost, while if the court settled the doubt against the United States, 1t had a speedy way, under a recent act of Con- gress, to take the case direct to the Supreme Court. Hence the demurrers were sustained.