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“The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a state government, deprives another of property, life, or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and, as he acts under the name and for the state, and is clothed with the state's power, his act is that of the state. This must be so, or the constitutional prohibitioti has no meaning. Then the state has clothed one of its agents with power to annul or evade it. But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons, not upon the abstract thing denominated a state, but upon the persons who are the agents of the state, in the denial of the rights which were in. tended to be secured.” 100 U.S. 346, 347.
In every material sense applicable to the practical enforcement of the fourteenth amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents of the state, because amenable, in respect of their public duties and functions, too public regulation. It seems to me that, within the principle settled in Ex parte Virginia, a denial by these instrumentalities of the state to the citizen, because of his race, of that equality of civil rights secured to him by law, is a denial by the state within the meaning of the fourteenth amendment. If it be not, then that race is left, in respect of the civil rights under discussion, practically at the mercy of corporations and individuals wielding power under public authority.
But the court says that congress did not, in the act of 1866, assume, under the authority given by the thirteenth amendment, to adjust what may be called the social rights of men and races in the community. I agree that government has nothing to do with social, as distinguished from technically legal, rights of individuals. No gov. ernment ever has brought, or ever can bring, its people into social intercourse against their wishes. Whether one person will permit or maintain social relations with another is a matter with which government has no concern. I
that if one citizen chooses not to hold social intercourse with another, he is not and cannot be made amen. able to the law for his conduct in that regard; for no legal right of a citizen is violated by the refusal of others to maintain merely social relations with him, even upon grounds of race. What I affirm is that no state, nor the officers of any state, nor any corporation or individual wielding power under state authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law, or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens, in their civil rights, because of their race, or because they once labored under disabilities imposed upon them as a race. The rights which congress, by the act of 1875, endeavored to secure and protect are legal, not social, rights. The right, for instance, of a
colored citizen to use the accommodations of a public highway upon the same terms as are permitted to white citizens is no more a social
right than his right, under the law, to use the public streets of a city, 8 or a town, or a turnpike road, or a public market, or a post-office, or
his right to sit in a public building with others, of whatever race, for the purpose of hearing the political questions of the day discussed. Scarcely a day passes without our seeing in this court-room citizens of the white and black races sitting side by side watching the progress of our business. It would never occur to any one that the presence of a colored citizen in a court-house or court-room was an invasion of the social rights of white persons who may frequent such places. And yet such a suggestion would be quite as sound in law -1 say it with all respect—as is the suggestion that the claim of a colored citizen to use, upon the same terms as is permitted to white citizens, the accommodations of public highways, or public inns, or places of public amusement, established under the license of the law, is an invasion of the social rights of the white race.
The court, in its opinion, reserves the question whether congress, in the exercise of its power to regulate commerce among the several states, might or might not pass a law regulating rights in public conveyances passing from one state to another. I beg to suggest that that precise question was substantially presented here in the only one of these cases relating to railroads,-Robinson v. Memphis d C.R. Co. In that case it appears that Mrs. Robinson, a citizen of Mississippi, purchased a railroad ticket entitling her to be carried from Grand Junction, Tennessee, to Lynchburg, Virginia. Might not the act of 1875 be maintained in that case, as applicable at least to commerce between the states, notwithstanding it does not, upon its face, profess to have been passed in pursuance of the power given to congress to regulate commerce? Has it ever been held that the judiciary should overturn a statute because the legislative department did not accurately recite therein the particular provision of the constitution authorizing its enactment? We have often enforced municipal bonds in aid of railroad subscriptions where they failed to recite the statute authorizing their issue, but recited one which did not sustain their validity. The inquiry in such cases has been, was there in any statute authority for the execution of the bonds? Upon this branch of the case it may be remarked that the state of Louisiana, in 1869, passed a statute giving to passengers, without regard to race or color, equality of right in the accommodations of railroad and street cars, steam-boats, or other water-crafts, stage-coaches, omnibuses, or other vehicles. But in Hall v. De Cuir, 95 U. S. 487, that act was pronounced unconstitutional so far as it related to commerce between the states, this court saying that “if the public good requires such legislation it must come from congress and not from the states.” I suggest that it may become a pertinent inquiry whether congress may, in the exertion of its power to regulate commerce among the states, enforce
among passengers on public conveyances equality of right without regard to race, color, or previous condition of servitude, if it be truewhich I do not admit—that such legislation would be an interference by government with the social rights of the people.
My brethren say that when a man has emerged from slavery, and by the aid of beneficient legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citi. zen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. What the nation, through congrs8s, has sought to accomplish in reference to that race is, what had already been done in every state in the Union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more. The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of their legal right to take that rank, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. • At every step in this direction the nation has been confronted with class tyrany, which a contemporary English historian says is, of all tyrannies, the most intolerable, “for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.” To-day it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree—for the due enforcement of which, by appropriate legislation, congress has been invested with express power-every one must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy, either of the recent changes in the fundamental law, or of the legislation which has been enacted to give them effect.
For the reasons stated I feel constrained to withhold my assent to the opinion of the court.
(109 U. S. 84)
PORTER, Assignee, o. LAZEAR.
(October 29, 1883.)
DOWER-SALE BY ASSIGNEE IN BANKRUPTCY OF HUSBAND'S ESTATE-LAW
Jo Pennsylvania, as in other states, dower is not barred by an assignment of the
husband's estate under the bankrupt act of the United States, and a sale by the assignee in bankruptcy under order of the court.
In Error to the Supreme Court of the State of Pennsylvania.
GRAY, J. This is an action by the assignee in bankruptcy of 8. B. W. Gill to recover the purchase money of land of the bankrupt sold by the plaintiff to the defendant.
In the case stated by the parties the following facts were agreed: On the twenty-eighth of November, 1877, Gill, upon petition of his creditors. was adjudged a bankrupt by the district court of the United States for the western district of Pennsylvania, and the plaintiff was afterwards appointed assignee of his estate, which included two lots of land in Pittsburgh. On the twenty-seventh of May, 1878, the assignee, pursuant to an order of the district court, and for the purpose of raising money to pay the bankrupt's debts, sold these lots by public auction to the defendant for the sum of $465, subject to the lien of a certain mortgage for $2,550; but the order of the court directed, and the advertisement thereof stated, that all other liens and incumbrances should be discharged by the sale. At the time of the commencement of the proceedings in bankruptcy the bankrupt had a wife, who is still living, and who claims a right of dower in the land. The sale having been confirmed absolutely by the district court, the assignee thereupon executed and tendered a deed of the land to the defendant, and demanded payment of the purchase money, which was refused, by reason of the incumbrance of the right of dower. It was agreed that if the court should be of opinion that the right of dower of the bankrupt's wife was divested by the bankruptcy proceedings and sale, judgment should be entered for the plaintiff for the sum of $465, with interest and costs; otherwise, judgment for the defendant. Upon the case stated the supreme court of Pennsylvania gave judgment for the defendant, and the plaintiff sued out this writ of error.
The single question is whether a wife's right of dower is barred by an assignment in bankruptcy and a sale by the assignee in bankruptcy under order of the court. By the law of England, which is our law in this respect, except so far as it has been changed by statute, the wife's right of dower is no part of the estate of the husband, and is not affected by proceedings in bankruptcy against him. Squire v. Compton, Vin. Abr. "Dower, G." pl. 60; Smith v. Smith, 5 Ves. 189, If it is barred in this case, it must be either by force of the provisions of the recent bankrupt act, or by reason of the nature of the right of dower under the local law of Pennsylvania. But, under the provisions of the bankrupt act, all that passes to the assignee by the assignment in bankruptcy, or that can be sold by direction of the court, is property or rights of the bankrupt, or property conveyed by the bankrupt in fraud of creditors, unless, indeed, a person holding a mortgage or pledge of, or lien upon, property of the bank. rupt elects to release the same. Rev. St. $ $ 5044-5046, 5061-5066, 5075; St. June 22, 1874, c. 390, $ 4; Donaldson v. Farwell, 93 U. S. 631.
The law of Pennsylvania as to the liability of the right of dower to be taken for the debts of the husband is certainly, in some respects, peculiar.
An act passed in 1705, “for taking lands in execution for payment of debts," provided that all lands of a debtor, having no sufficient personal estate, should be liable to be seized and sold upon judgment and execution obtained against him; and that, in case of default in payment of any debt secured by mortgage of real estate, the mortgagee might, by writ of scire facias, obtain execution to be levied by sale of the mortgaged premises. 1 Dall. Laws Pa. 67–71. Another act passed in the same year, “for the better settling of intestates' estates," while recognizing a right of dower in the widow, “which dower she shall hold as tenants in dower do in England,” authorized the administrator, in case of insufficiency of the personal estate, to sell and convey the lands of the deceased, including the rights of the widow therein, for the payment of his debts. Id. Appendix, 43–45.
It was established by judicial decisions in Pennsylvania, upon the construction and effect of these statutes, before the beginning of the publication of reports, that the wife's right of dower could be taken and sold on execution upon a judgment recovered against the husband, or upon scire facias on a mortgage executed for valuable consideration by him alone, or under a devise by him for the payment of his debts. Howell v. Laycock, cited in 2 Dall. 128, and 4 Dall. 301, note; Graff V. Smith's Adm'rs, 1 Dall. 481, 484; Scott v. Crosdale, 2 Dall. 127; S. C. 1 Yeates, 75; Mitchell v. Mitchell, 8 Pa. St. 126; Blair County Director: v. Royer, 43 Pa. St. 146.
The grounds of those decisions have been explained by two of the most eminent judges of Pennsylvania.
In Kirk v. Dean, 2 Binn. 341, 347, Chief Justice TIGHMAN said: “It may be proper to take notice of deeds of mortgage of the husband's property. It is understood that by such deeds the wife may be barred of dower, though she was no party to the conveyance. But this depends on another principle, in which the law of Pennsylvania differs from the common law. The right of creditors prevails against the right of dower. A purchaser under an execution against the husband takes the land discharged of dower; and the only mode of proceeding on a mortgage, with us, is to sell the land