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CORY v. CARTER.

Vol. II.)

{No. 2.

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

Cory v. CARTER.

[No. 2.

Vol. II.]

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 case. 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.'

“ 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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Vol. II.)

CORY v. CARTER.

[No. 2.

“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.

Vol. II.)

CORY v. CARTER.

[No. 2.

How far, then, have these amendments operated to change the Constitution of Indiana, or imposed limitations or restrictions upon the sovereign power of the state ?

We answer in the following particulars :

1. The state cannot in the future, while a member of the federal Union, change her Constitution so as to create or establish slavery or involuntary servitude, except as a punishment for crimes whereof the party shall have been convicted, — thus protecting the new class of citizen's, that is, negroes and mulattoes, from being again reduced to slavery.

2. The state cannot deny to, nor deprive a citizen of the United States, that is, any negro or mulatto, of those national rights, privileges, or immunities which belong to him as such citizen.

3. The state must recognize as its citizen any citizen of the United States, that is, any negro or mulatto who is or becomes a bona fide resident therein.

4. The state must give to such, that is, to such negro or mulatto who is or who becomes a bonă fide resident therein, the same rights, privileges, and immunities secured by her Constitution and laws to her other, that is, to her white citizens.

In our opinion such amendments have not in any other respect imposed restrictions or limitation upon the sovereign power of the state. From this it results that there is no limitation upon the power of the state, within the limits of her own Constitution, to fix, secure, and protect the rights, privileges, and immunities of her citizens as such, of whatever race or color they may be, so as to secure her own internal peace, prosperity, and happiness.

This will preserve in their purity and vigor the structure and spirit of our complex system of government, as it came from the hands of the great and illustrious men who achieved our independence and formed our matchless form of government. Anterior to the adoption of the federal Constitution, the states existed as independent sovereignties, possessing supreme and absolute power over all questions of local and internal government. To the states the whole charge of interior regulation is left by the federal Constitution, to them, and to the people thereof; all powers not expressly or by necessary implication delegated to the national government and not prohibited to the states are reserved to the states.

The Constitution of the United States is the bond that binds the states in one federal union. It formed and provided the agencies for the continuance and management of the federal government. It relates to and concerns matters of national import; and enables the states, represented by their federal head, as one of the independent and most powerful governments of the world, to enter into and manage its relations with the other independent powers of the earth.

Under our Constitution our common school system must be general. That is, it must extend over and embrace every portion of the state.

It must be uniform. The uniformity required has reference to the mode of government and discipline, the branches of learning taught, and the qualifications as to age and advancement in learning required of pupils, as conditions of their admission. It does not mean that all the schools shall be of the same size and grade, or that all the branches of learning taught Vol. II.)

CORY v. CARTER.

[No. 2

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in one school shall be taught in all other schools, or that the qualifications, as to age or advancement, which would admit a pupil in one school, would entitle such pupil to admission into all the other schools. Uniformity will be secured when all the schools of the same grade have the same system of government and discipline, the same branches of learning taught, and the same qualifications for admission.

The schools must be “ equally open to all.” This has reference to the persons who are entitled to receive instruction therein. The phrase “ equally open to all ” is not to be taken in a literal sense, for this would embrace the whole people of the state, the infant, the middle-aged, the septuagenarian, and the married. It is obvious that the common schools of the state are neither to be equally open to everybody, nor to every child, but that they are to be equally open to a class of persons, which class and their qualifications are to be designated and prescribed by the legislature.

The federal Constitution does not provide for any general system of education to be conducted and controlled by the national government, nor does it vest in Congress any power to exercise a general or special supervision over the states on the subject of education. The Constitution gives to Congress the power to dispose of and make all needful rules and regulations respecting the territories and other property belonging to the United States, and by virtue of this power territorial governments are organized. It also confers on Congress the exclusive power to legislate in all cases whatever over the District of Columbia, and by virtue of this power Congress has established in such district a system of common schools. Congress has also established and maintained military and naval schools at the expense of the government.

The system of common schools in this state has its origin in and is provided for by the Constitution and laws of this state. It is purely a domestic institution, and subject to the exclusive control of the constituted authorities of the state. The Constitution does not provide the machinery, nor lay down its rule of government or discipline, nor define the terms and conditions of admission. It makes it the imperative duty of the legislature to provide, by law, the system, and imposes no limitations on the power of the legislature, except that tuition shall be free, and the schools shall be equally open to all — that is, to such classes of persons as the legislature may in its wisdom determine.

There being no further restriction upon the legislative power and discretion, it necessarily follows that, in providing for this system of schools, the legislature is left free to fix the qualifications of pupils to be admitted to its benefits, as respects age and capacity to learn, to classify them with reference to age, sex, advancement, and the branches of learning they are to pursue ; to provide for the location and building of school-houses; to designate to what schools and in what school-houses the different ages, sexes, and degrees of proficiency shall be assigned, for these all concern the good order and success of the system.

It must also follow that this policy or framework of government for that system vitally concerns and blends itself with the internal affairs of the state, with its happiness and prosperity, its peace and good order; and depends upon the wisdom of the legislature, and of the agencies provided

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