The Montgomery advertiser., 1908-11-10
LEGAL RIGHT
 TO SEPARATE Kentucky School Case
 Decided. JUSTICE BREWERS OPINION The Court Holds Against Bersa
 College. niay NOt Mix Waite and Negro Pupils. sharp words By JustIce Har-
 Ian In DlssenlinE

Washington, Nov. 9.-In deciding the case of Berea College vs. the State of Kentucky. favorabiy to the state. the Supreme court of the United States to- day het4 that the states of the union may. constftutionaIly legisiste to pre- vent the eo-educatton of the white and black races
 The case was instituted to test the validity of the state law of 1904 pro- hibiting white and black children from attending the same schools. The higher state court took the position that the white and black races are naturally antaKonistic and that the enforced separation of the children of the two is in the line of the preservation of the peace. A
 The opinion of the suprem &court was handed down by Justice Brewer and affirmed the finding of both the Kentucky circuit court and the court of appeals. Justices Harlan and Dae dissentad.
 Opshion os Brewer.
 Justice Brewers opinion dealt en- tirely with corporations as affected by the Kentucky statute. and did not consider the question of it's appliea- bility to individuals.
 | Proceeding upon the theory that ,a State has complete control over eorpor- ations as It's own creations, he then construed the law of 1904 as in effect an amendment to the charter of 'Berea College and added:
 "It is undoubted taat the reserved power to amend or alter Is subject to some limitations. and that under the guise of an amendment new contract may always be enforcible under the corporation on the stockholders. but 1t is settled that power reserved to the LegisIature to alter. amend or repeal a charter authorizes 1t to make any all iteration or amendment of charter lfgranted subject to 1t, which will not dsfeat or substantlally impair the ob- 1 ject of the grant, of anyrights vested under n and Mh5ch the Legislature I may deelia necessary to secure. any ob- feet or any public right.
 we need concern ourselves only with the inquiry whether the first section of the Kentucky law. can be upheld as coming within the power of lures. We are of opinion that 1t does come within that power"
 Responding to some of Justice Har- lan'a ,strictures. Justice Brewer said:.
 "There is no force in the suggestion that the statute, although clearly sep arabic. must stand or fall as an en- tiretv on the ground that the Legis- lature would not have enacted one part unless 1t could reach all That the LegIslature of Kentucky desired to separate the teaching of white and colored children may be conceded. but 1t by no means follows that 1t would have enforced the separation so far as 1t could so so, even though 1t could not make it effective under all circum- stances. In other words, 1t is not at all unreasonable to believe that the iIeeIslature although advised before hand of the Constitutional question, might have prohibited all organiza- tions and corporations under It's con trol from teaching white and colored children together and thus made at least uniform official action" HarIan's Dissent.
 contending that 1t would prove i'm practicable and unsatisfactory to sep arate corporate from private schools. Justice Harlan, in his dissenting opin- ion, said the court should meet the en- tire question squarely and decide whether 1t Is a crime under any con- ditiens to educate white and negro oh hiidren at the same institutions. He did not coneede that 1t should be so regarded.
 Have we," he asked. become so inoculated with prejudice of race that an American Government professedly based upon the principles of freedom and charged with the protection of all citizens alike, can make distinctions between such citizens in the matter of thu cir voluntary association for inno- cent purposes, mostly because of their respective races7
 Further, if the lower court be right, then a State may make it a crime for white children and colOred persons to freauent the same market places at the same time, or appear in assemblage of citizens convened to consider questions of a public or political nature in which all citizens without regard to race. are equally interested. Many other Illustrations might be given to show the mischievous, not to say cruel, character of the statute in question, and how Inconsistent such legislation Is with the great principle of the equality of citizens before the law"
 Justice Harlan added that he did not want to be understood as crittcising the system of separate schools for the races but that his censure was directed at the penal provision of the Kentucky la involved in this case. He eonsid- cred 1t unconstitutional.