Vol. II.]

CORY V. CARTER.

[No. 2.

ing distance are not sufficient to organize a school, the trustees may consolidate several districts into one for that purpose. And if the number of colored children within reasonable attending distance are not sufficient to be thus consolidated, the trustees shall provide such other means of education for such colored children as shall use their proportion, according to numbers, of the school revenue to the best advantage.

The fourth section makes all laws relative to school matters, not inconsistent with the provisions of the act, applicable to colored schools.

It is, in the first place, claimed that the act of May 13, 1869, is in conflict with section 19 of article 4 of our Constitution, which provides that every act shall" embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title."

We think the subject of the act is common schools, and that the taxation of the property of all persons for school purposes, and the enumeration of, and providing schools for the colored children of the state are properly connected with the subject of the act. We have so frequently placed a construction upon the above quoted section that we do not deem it necessary to reëxamine the question. We cite the late case of the State on the relation of Pitman v. Tucker, where many of the cases are cited.

It is very plain and obvious to us, that by the supplemental act of May 13, 1869, the legislature has provided for the education of the white and colored children of the state in separate schools, and the question presented for our decision is, whether such legislation is in conflict with the Constitution of this state or the Constitution of the United States.

It is contended that the act in question is repugnant to section 23 of article 1, and section 1 of article 8, and they are: "Section 23. The gêneral assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens." 1 G. & H. 33.

Section 1, article 8 (1 G. & H. 48), declares, that "knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government, it shall be the duty of the general assembly to encourage by all suitable means, moral, intellectual, scientific, and agricultural improvement, and to provide by law for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all."

It is important that we should settle in advance the rules by which we are to be guided in placing a construction upon the constitutional provisions above quoted.

In the State v. Gibson, 36 Ind. 389, we held that it was settled by very high authority that, in placing a construction upon a written constitution, or any clause or part thereof, a court should look to the history of the times and examine the state of things existing when the constitution, or any part thereof, was framed and adopted, to ascertain the old law, the mischief, and the remedy. The court should also look to the nature and objects of the particular powers, duties, and rights in question, with all the aids and lights of contemporary history, and give to the words of each provision just such operation and force, consistent with their legitimate meaning, as will fairly serve the end proposed. Kendall v. The United States, 12 Peters, 524; Prigg v. The Commonwealth, 16 Ib. 539.

Vol. II.]

CORY v. CArter.

[No. 1.

In the Slaughter-house Cases, 16 Wallace, 36, the same rules were laid down and illustrated with great force by reference to the history of the times and condition of things which brought about the recent amendments to the Constitution of the United States.

Judge Cooley, in his great work on Constitutional Limitations, on page 54, says:

"A cardinal rule in dealing with written instruments is, that they shall receive an unvarying interpretation, and that their practical construction is to be uniform A construction is not to be made to mean one thing at one time, and another at some subsequent time when circumstances may have so changed, as perhaps to make a different rule in the case seem desirable. A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the principles of the common law. Those beneficent maxims of the common law which guard person and property have grown and expanded until they mean vastly more to us than they did to our ancestors, and are more minute, particular, and pervading in their protections; and we may confidently look forward in the future to still further modifications in the direction of improvement. Public sentiment and action effect such changes, and the courts recognize them; but a court or legislature which should allow a change in public sentiment to influence it in giving construction to a written constitution not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty; and if its course could become a precedent these instruments would be of little avail. The violence of public passion is quite as likely to be in the direction of oppression as in any other; and the necessity of bills of rights in our fundamental laws lies mainly in the danger that the legislature will be influenced by temporary excitements and passions among the people to adopt oppressive enactments. What a court is to do, therefore, is to declare the laws as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the Constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it."

Again the learned author says: "The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced."

Another cardinal rule of construction laid down by this author is, that the whole instrument is to be examined in placing a construction upon any portion or clause thereof. He says: "Nor is it lightly to be inferred that any portion of a written law is so ambiguous as to require intrinsic aid in its construction. Every such instrument is adopted as a whole, and a clause which, standing by itself, might seem of doubtful import, may yet be made plain by comparison with other clauses or portions of the same law. It is, therefore, a rule of construction, that the whole is to be

[No. 2.

examined with a view to arriving at the true intention of each part, and this Sir Edward Coke regards the most natural and genuine method of expounding a statute. If any section (of a law) be intricate, obscure, or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of another; and in making this comparison it is not to be supposed that any words have been employed without occasion, or without intent that they should have effect as part of the law. The rule applicable here is, that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict the courts must harmonize them, if practicable, and lean in favor of a construction which will render every word operative, rather than one which may make some idle and nugatory.'

"This rule is especially applicable to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise when a court would be justifiable in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrain its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together."

In support of the above propositions reference is made in the notes to the following authorities: People v. Morrell, 21 Wend. 584; Newell v. People, 7 N. Y 109; McKoan v. Devriess, 3 Barb. 196; People v. Blodgett, 13 Mich. 138; United States v. Fisher, 2 Cranch, 399; Bosley v. Mattingley, 14 B. Monroe, 89; Sturgis v. Crowninshield, 4 Wheat. 202; Schooner Paulina's cargo v. United States, 7 Cranch, 60; Ogden v. Strong, 2 Paine C. C. 584; United States v. Ragsdale, 1 Hemp. 497; Southwark Bank v. Commonwealth, 26 Penn. St. 446; Ingalls v. Cole, 47 Me. 530; McCluskey v. Cromwell, 11 N. Y. 593; Furman v. New York, 56 Sandf. 16; People v. N. Y. Central R. R. Co. 24 N. Y. 492; Bidwell v. Whitaker, 1 Mich. 479; Alexander v. Worthington, 5 Md. 471; Cantrell v. Owens, 14 Md. 215; Case v. Wildridge, 4 Ind. 51; Putnam v. Flint, 10 Pick. 504; Ludlow v. Johnson, 3 Ohio, 553; District Township v. Dubuque, 7 Iowa, 262; Pattison v. Yuba, 13 Cal. 175; Spencer v. The State, 5 Ind. 49; Den v. Reid, 10 Pet. 524; Greencastle Township v. Black, 5 Ind. 569; Stowell v. Lord Zouch, Plowd. 365; Broome's Maxims (5th Am. ed.) 551; Co. Lit. 381; Attorney General v. Detroit & E. R. R. Co. 2 Mich. 138; People v. Burns, 5 Mich. 114; Manly v. State, 7 Md. 135; Parkinson v. State, 14 Md. 184; Belleville R. R. Co. v. Gregory, 15 Ill. 20; Ryegate v. Wardsboro, 30 Vt. 746; Brooks v. Mobile School Com. 31 Ala. 227; Den v. Dubois, 1 Harrison, 285; Den v. Schenck, 3 Halst. 34; Wolcott v. Wigton, 7 Ind. 49; People v. Purdy, 2 Hill, 36; Green v. Weller, 32 Miss. 650; Warren v. Sherman, 5 Texas, 441; Quick v. Whitewater Township, 7 Ind. 570; Gibbons v. Ogden, 9 Wheat. 188; Smith on Statutes, sections 502, 503; Sedgwick on Stat. & Const. Law, 229, 233, 251, 252. An examination of the above authorities shows that they are in point and fully support the doctrines announced.

Vol. II.]

CORY v. CARTER.

[No. 2.

It is essential to a correct interpretation of the above provisions of our Constitution in the light of the above rules of construction, that we should look to the history of the times and examine the condition of things existing prior to and at the time of the adoption and ratification of our present state Constitution, and compare the sections in question with other portions and clauses of such Constitution. We will limit our inquiry into the political condition of the negroes in this state from the organization of our state government in 1816 down to the ratification of the thirteenth, fourteenth, and fifteenth amendments to the Constitution of the United States, and incidentally to their status in other states of the Union.

race.

Prior to the act of May 13, 1869, making taxation for common school purposes uniform, and providing for the education of the colored children of the state (3 Ind. Stat. 472), no provision was made for their education in this state. As a race their condition was one of marked and settled inferiority before the law, being confined strictly to the enjoyment of the three primary rights only, and for a large portion of time legally prohibited from their full exercise, viz.: the right of personal security; the right of personal liberty; and the right of private property. But the power of exercising these rights was practically limited in degree, as compared with the exercise and enjoyment of the same rights by the white This was their most favorable condition in several states of the Union, they being admitted to the equal exercise of civil and political rights and privileges with the whites in but one state of the Union. In nearly one half of the states of the Union, as a race, they lived in a state of life-long servitude, having no control of their time or actions right to acquire property-no lawful power to follow the promptings of their own thoughts and judgments, their lives and limb, their minds and strength, the property and subject to the will of their masters; and, notwithstanding the proclamation of emancipation, this continued to be their condition, practically and in a large degree, until after the ratification of the thirteenth amendment to the Constitution of the United States, December 18, 1865. 2 Kent's Com. (7th ed.) side page 252-258, and note 1 to side page 58; Scott v. Sandford, 19 How. 393; Smith v. Moody, 26 Ind. 299; Rev. Stat. 1831, 375; Ib. 1838, 418.

no

By section 7 of article 11 of the Constitution of 1836, it is provided that there shall be neither slavery nor involuntary servitude in this state, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted. R. S. 1838, p. 50.

Section 2 of article 3 provided for an enumeration of all the white male inhabitants above the age of twenty-one years. R. S. 1838, p. 38. Section 1 of article 6 limited the right of suffrage to the white male citizens of the United States of the age of twenty-one, and who had resided in the state one year immediately preceding the election. R. S. 1838, p. 41.

By the act of February 10, 1834, every such person coming into or being brought into this state, was prohibited from residing therein, unless bond with good and sufficient security, to be approved by the overseers of the poor of some township, was given on behalf of such person, payable to the State of Indiana, in the penal sum of $500, conditioned that

Vol. II.]

CORY v. CARTER.

[No. 2.

such person should not, at any time, become a charge to the county in which such bond was given, nor to any other county in the state, as also for such person's good behavior, &c.

It provided penalties, likewise, for failure to comply with those provisions, consisting of hiring such person out and applying the proceeds to his benefit, and removal from the state; and by fine imposed, and recovered by presentment or indictment, for harboring any such person failing to give the required bond.

This act remained upon the statute book of this state, and continued in force for a period of over twelve years; and received the judicial sanction of the supreme court of the state. Rev. Stat. 1831, pp. 375, 376; Rev. Stat. 1838, pp. 418, 419; The State v. Cooper, 5 Blackf. 258; Baptiste v. The State, Ib. 283; Hickland v. The State, 8 Ib. 365.

Article 13 of the Constitution of this state, which took effect on the first day of November, 1851, and superseded the Constitution of 1816, prohibited negroes and mulattoes from coming into or settling in this state after its adoption, declared all contracts with such persons void, and made it an offence punishable by fine of not less than ten nor more than five hundred dollars for any person to employ them; and this article was submitted, as a distinct proposition, to the people of the state for their approval or disapproval, and was adopted by a vote of 109,976 to 21,066. 1 G. & H. p. 52; Dillon's Hist. Ind. 577.

Other provisions of this Constitution excluded negroes and mulattoes from the elective franchise, from holding office in the state or any of its departments, from the enumeration for senatorial or representative purposes, and from participation in all of the privileges pertaining to full and active citizenship, making of them a separate and distinct class of inferiors before the law, and placing them politically in a separate body, with no constitutional grant of privileges and immunities under the title of "citizen" or "citizens," but leaving them in possession only of the three primary rights heretofore mentioned. 1 Op. Att'y Gen. 506; 4 Op. Att'y Gen. 147; Smith v. Moody, supra.

This the Constitution, and subsequent recognized and decided constitutional legislation, clearly establish. Acts June 18, 1852, 2 G. & H. 443 ; Hatwood v. The State, 18 Ind. 492; Berkshire v. The State, 7 Ib. 389.

In the light of the foregoing history, constitutional provisions, legislative acts and judicial constructions thereof, it is very plain and obvious to us that persons of the African race were not in the minds or contemplation of the wise and thoughtful framers of our Constitution when they prepared and agreed upon the above quoted sections, or of the people of the state when they ratified and adopted the Constitution containing such provisions.

In our opinion, the privileges and immunities secured by section 23 of article 1 were not intended for persons of the African race, for the section expressly limits the enjoyment of such privileges and immunities to citizens, and at that time negroes were neither citizens of the United States nor of this state. It was held by this court in Sears v. The Board of Commissioners of Warren County, 36 Ind. 267, that the privileges and immunities secured by the above quoted section were intended for citizen of this state.