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Vol. II.] [No. 2. reside within the state to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear then, that there is a citizenship of the United States, and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics and circumstances in the individual." Hence a negro may be a citizen of the United States and reside without its territorial limits, or within some one of the territories; but he cannot be a citizen of a state until he becomes a bona fide resident of the state.

Second. "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

This clause does not refer to citizens of the states. It embraces only citizens of the United States. It leaves out the words "citizen of the state," which is so carefully used, and used in contradistinction to citizens of the United States in the preceding sentence. It places the privileges and immunities of citizens of the United States under the protection of the federal Constitution, and leaves the privileges and immunities of citizens of a state under the protection of the state constitution. This is fully shown by the recent decision of the supreme court of the United States in the Slaughter-house Cases, supra.

Mr. Justice Miller, in delivering the opinion of the court, and in speaking in reference to the clause under examination, says: —

"It is a little remarkable, if this clause was intended as a protection to the citizen of a state against the legislative power of his own state, that the word citizen of the state should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose."

"Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the state, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment."

"If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the state as such, the latter must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the amendment."

The same learned judge in the further examination of the second clause, says:

"It would be the vainest show of learning to attempt to prove by citations of authority that up to the adoption of the recent amendments no claim or pretence was set up that those rights depended on the federal government for their existence or protection, beyond the very few express limitations which the federal Constitution imposed upon the states - such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligations of contracts. But with the exception of these and a few other restrictions, the entire domain of

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the privileges and immunities of citizens of the states as above defined, lay within the constitutional and legislative power of the states, and without that of the federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no state should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned from the states to the federal government? And when it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the states?

"All this and more must follow, if the position of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by state legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the states, in the most ordinary and useful functions, as in its judgment it may think proper on all such subjects. And still further, such a construction, followed by the reversal of the judgments of the supreme court of Louisiana in these cases" (these judgments sustained the validity of the grant, by the Legislature of Louisiana, of an exclusive right guarded by certain limitations as to price, &c., to a corporation created by it, for twenty-five years, to build and maintain slaughter-houses, &c., and prohibited the right to all others, within a certain locality), "would constitute this court a perpetual censor upon all legislation of the states, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.

"The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the state governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relation of the state and federal governments to each other and of both these governments to the people, the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt. We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the states which ratified them."

Third. "Nor shall any state deprive any person of life, liberty, or property, without due process of law.'

This clause is the same contained in the fifth amendment to the Constitution of the United States, but there applied to the action of the federal government, and here placed as a check upon the states. But the Constitution of our state, and perhaps of all the states, contain just such a provision, so that it expresses no new principle, but is the old rule in force

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since the foundation of the state governments. It prohibits the states from depriving any person of life, liberty, or property, except "in the due course of legal proceedings, according to those rules and forms which have been established" by the state, "for the protection of private rights." Cooley on Const. Lim. 356, 357; Westervelt v. Gregg, 12 N. Y. 209.

Fourth. "Nor deny to any person within its jurisdiction the equal protection of the laws."

In regard to this clause the supreme court of this state, in The State v. Gibson, 36 Ind. 389, say, it "seems to have been added in the abundance of caution, for it provides in express terms what was the fair, logical, and just implication from what had preceded it, and that was, that the persons made citizens by the amendment should be protected by the laws in the same manner, and to the same extent, that white citizens were protected."

In the case of The State v. Gibson, supra, this court was called upon to place a construction upon the fourteenth amendment to the Constitution of the United States. It was claimed in that case, that such amendment had abolished the laws of this state prohibiting the intermarriage of negroes and whites. We held that marriage is a purely domestic institution, and subject to the exclusive control of the state; that such amendment had not conferred on the federal government any power to interfere with the institution of marriage; and that such amendment had not enlarged the powers of the federal government nor diminished those of the states. We then said: "The fourteenth amendment contains no new grant of power from the people, who are inherent possessors of all power, to the federal government. It did not enlarge the powers of the federal government, nor diminish those of the states. The inhibitions against the states doing certain things have no force or effect. They do not prohibit the states from doing any act that they could have done without them. The only effect of the amendment under consideration was to extend the protection and blessings of the Constitution and laws to a new class of persons. When they were made citizens they were as much entitled to the protection of the Constitution and the laws as were the white citizens, and the states could no more deprive them of privileges and immunities than they could citizens of the white race. Citizenship entitled them to the protection of life, liberty, and property, and the full and equal protection of the laws. Nor has the ratification of this amendment in any manner nor to any extent impaired, weakened, or taken away any of the reserved rights of the states, as they had existed and been fully recognized by every department of the national government from its creation." What was then intended to be expressed was, that the fourteenth amendment had not delegated to the federal government the power to regulate and control the domestic institutions of a state. As will be hereinafter shown, it imposes some limitations upon the powers of the states, as to slavery and the equal protection of the rights of citizens of the United States and of the states.

We were then unaided by any judicial construction of the fourteenth amendment; and we are gratified to know that the views then expressed have been, in all substantial respects, sustained by the highest judicial

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tribunal in this country, and the one especially charged with the construction and interpretation of the federal Constitution. By the solemn decision of that high court the privileges and immunities belonging to the citizen of the state, as such, rest for their security and protection where they have heretofore rested, with the states themselves.

In The State v. McCann, 21 Ohio St. 178, the supreme court of that state uses the following language:

"It would seem, then, that under the Constitution and laws of this state the right to classify the youth of the state for school purposes, on the basis of color, and to assign them to separate schools for education, both upon well-recognized legal principles and the repeated adjudications of this court, is too firmly established to be now judicially disturbed.

"But it is claimed that the law authorizing the classification in question contravenes the provisions of the fourteenth amendment of the Constitution of the United States, and is, therefore, abrogated thereby.

"Unquestionably all doubts, wheresoever they existed, as to the citizenship of colored persons and their right to the 'equal protection of the laws,' are settled by this amendment. But neither of these were denied to them in this state before the adoption of this amendment. At all events, the statutes classifying the youth of the state for school purposes on the basis of color, and the decisions of this court in relation thereto, were not at all based upon a denial that colored persons were citizens, or that they are entitled to the equal protection of the laws. It would seem, then, that these provisions of the amendment contain nothing conflicting with the statute authorizing the classification in question, nor the decisions heretofore made touching the point in controversy in this case. Nor do we understand that the contrary is claimed by counsel in this But the clause relied on, in behalf of the plaintiff, is that which forbids any state to make or enforce any law which will abridge the privileges or immunities of citizens of the United States.'

case.

"This involves the inquiry as to what privileges or immunities are embraced in the inhibition of this clause. We are not aware that this has as yet been judicially settled. The language of the clause, however, taken in connection with other provisions of the amendment, and of the Constitution of which it forms a part, affords strong reasons for believing that it includes any such privileges or immunities as are derived from, or recognized by the Constitution of the United States."

"A broader interpretation opens into a field of conjecture limitless as the range of speculative theories, and might work such limitations of the power of the states to manage and regulate their local institutions and affairs as were never contemplated by this amendment."

"If this construction be correct, the clause has no application to this. case, for all the privileges of the school system of this state are derived solely from the Constitution and laws of the state. If the general assembly should pass a law repealing all laws creating and regulating the system, it cannot be claimed that the fourteenth amendment could be interposed to prevent so grievous an abridgment of the privileges of the citizens of the state, for they would thereby be deprived of privileges derived from the state, and not of privileges derived from the United States.

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"But we need not now further discuss this point, as the true meaning and exact limits of the clause in question are not necessarily involved in this case. For, conceding that the fourteenth amendment not only provides equal securities for all, but guarantees equality of rights to the citizens of a state, as one of the privileges of citizens of the United States, it remains to be seen whether this privilege has been abridged in the case before us. The law in question surely does not attempt to deprive colored persons of any rights. On the contrary, it recognizes their right, under the Constitution of the state, to equal common school advantages, and secures to them their equal proportion of the school fund. It only regulates the mode and manner in which this right shall be enjoyed by all classes of persons. The regulation of this right arises from the necessity of the case. Undoubtedly it should be done in a manner to promote the best interests of all. But this task must, of necessity, be left to the wisdom and discretion of some proper authority. The people have committed it to the general assembly, and the presumption is that it has discharged its duty in accordance with the best interests of all. At all events, the legislative action is conclusive, unless it clearly infringes the provisions of the Constitution."

"At most, the fourteenth amendment only affords to colored citizens an additional guaranty of equality of rights to that already secured by the Constitution of the state."

"The question, therefore, under consideration is the same that has, as we have seen, been heretofore determined in this state, that a classification of the youth of the state for school purposes, upon any basis which does not exclude either class from equal school advantages, is no infringement of the equal rights of citizens secured by the Constitution of the

state.

"We have seen that the law, in the case before us, works no substantial inequality of school privileges between the children of both classes in the locality of the parties. Under the lawful regulation of equal educational privileges, the children of each class are required to attend the school provided for them, and to which they are assigned by those having the official control of all. The plaintiff, then, cannot claim that his privileges are abridged on the ground of inequality of school advantages for his children, nor can he decide where his children shall be instructed, or what teacher shall perform that office, without obtaining privileges not enjoyed by white citizens. Equality of rights does not involve the necessity of educating white and colored persons in the same school any more than it does that of educating children of both sexes in the same school, or that different grades of scholars must be kept in the same school. Any classification which preserves substantially equal school advantages is not prohibited by either the state or federal Constitution, nor would it contravene the provisions of either. There is, then, no ground upon which the plaintiff can claim that his rights under the fourteenth amendment have been infringed."

The foregoing opinion, having been rendered since the ratification of the fourteenth amendment, is directly in point and is entitled to great weight and consideration, coming as it does from a court distinguished for its learning and ability.