Berea College v. Commonwealth of Kentucky

• Decision Date: 09 November 1908
• Docket Number: No. 12,12
• Citation: 53 L.Ed. 81,29 S.Ct. 33,211 U.S. 45
• Parties: BEREA COLLEGE, Plff. in Err., v. COMMONWEALTH OF KENTUCKY
• Court: U.S. Supreme Court

211 U.S. 45

29 S.Ct. 33

53 L.Ed. 81

BEREA COLLEGE, Plff. in Err.,

v COMMONWEALTH OF KENTUCKY.

No. 12.

Argued April 10, 13, 1908.

Decided November 9, 1908.

On October 8, 1904, the grand jury of Madison county, Kentucky, presented in the circuit court of that county an indictment, charging:

'The said Berea College, being a corporation duly incorporated under the laws of the state of Kentucky, and owning, maintaining, and operating a college, school, and institution of learning, known as 'Berea College,' located in the town of Berea, Madison county, Kentucky, did unlawfully and wilfully permit and receive both the white and negro races as pupils for instruction in said college, school, and institution of learning.'

This indictment was found under an act of March 22, 1904 (Ky. Acts 1904, chap. 85, p. 181), whose 1st section reads:

'Sec. 1. That it shall be unlawful for any person, corporation, or association of persons to maintain or operate any college, school, or institution where persons of the white and negro races are both received as pupils for instruction, and any person or corporation who shall operate or maintain any such college, school, or institution shall be fined $1,000, and any person or corporation who may be convicted of violating the provisions of this act shall be fined $100 for each day they may operate said school, college, or institution after such conviction.'

On a trial the defendant was found guilty and sentenced to pay a fine of $1,000. This judgment was, on June 12, 1906, affirmed by the court of appeals of the state (123 Ky. 209, 94 S. W. 623), and from that court brought here on writ of error.

Messrs. Guy Ward Mallon and John G. Carlisle for plaintiff in error.

[Argument of Counsel from pages 46-51 intentionally omitted] Messrs. N. B. Hays, James Breathitt, Thomas B. McGregor, and Charles H. Morris for defendant in error.

Statement by Mr. Justice Brewer:

[Argument of Counsel from pages 51-53 intentionally omitted] Mr. Justice Brewer delivered the opinion of the court:

There is no dispute as to the facts. That the act does not violate the Constitution of Kentucky is settled by the decision of its highest court, and the single question for our consideration is whether it conflicts with the Federal Constitution. The court of appeals discussed at some length the general power of the state in respect to the separation of the two races. It also ruled that 'the right to teach white and negro children in a private school at the same time and place is not a property right. Besides, appellant, as a corporation created by this state, has no natural right to teach at all. Its right to teach is such as the state sees fit to give to it. The state may withhold it altogether, or qualify it. Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427.'

Upon this we remark that when a state court decides a case upon two grounds, one Federal and the other non-Federal, this court will not disturb the judgment if the non-Federal ground, fairly construed, sustains the decision. Murdock v. Memphis, 20 Wall. 590, 636, 22 L. ed. 429, 444; Eustis v. Bolles, 150 U. S. 361, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131; Giles v. Teasley, 193 U. S. 146—160. 48 L. ed. 655-658, 24 Sup. Ct. Rep. 359; Allen v. Arguimbau, 198 U. S. 149, 49 L. ed. 990, 25 Sup. Ct. Rep. 622.

Again, the decision by a state court of the extent and limitation of the powers conferred by the state upon one of its own corporations is of a purely local nature. In creating a corporation a state may withhold powers which may be exercised by and cannot be denied to an individual. It is under no obligation to treat both alike. In granting corporate powers the legislature may deem that the best interests of the state would be subserved by some restriction, and the corporation may not plead that, in spite of the restriction, it has more or greater powers because the citizen has. 'The granting of such right or privilege [the right or privilege to be a corporation] rests entirely in the discretion of the state, and, of course, when granted, may be accompanied with such conditions as its legislature may judge most befitting to its interests and policy.' Home Ins. Co. v. New York, 134 U. S. 594-600, 33 L. ed. 1025-1029, 10 Sup. Ct. Rep. 593, 595; Perrine v. Chesapeake & D. Canal Co. 9 How. 172-184, 13 L. ed. 92-97; Horn Silver Min. Co. v. New York, 143 U. S. 305-312, 36 L. ed. 164-167, 4 Inters. Com. Rep. 57, 12 Sup. Ct. Rep. 403. The act of 1904 forbids 'any person, corporation, or association of persons to maintain or operate any college,' etc. Such a statute may conflict with the Federal Constitution in denying to individuals powers which they may rightfully exercise, and yet, at the same time, be valid as to a corporation created by the state.

It may be said that the court of appeals sustained the validity of this section of the statute, both against individuals and corporations. It ruled that the legislation was within the power of the state, and that the state might rightfully thus restrain all individuals, corporations, and associations. But it is unnecessary for us to consider anything more than the question of its validity as applied to corporation.

The statute is clearly separable, and may be valid as to one class while invalid as to another. Even if it were conceded that its assertion of power over individuals cannot be sustained, still it must be upheld so far as it restrains corporations.

There is no force in the suggestion that the statute, although clearly separable, must stand or fall as an entirety on the ground the legislature would not have enacted one part unless it could reach all. That the legislature of Kentucky desired to separate the teaching of white and colored children may be conceded; but it by no means follows that it would not have enforced the separation so far as it could do so, even though it could not make it effective under all circumstances. In other words, it is not at all unreasonable to believe that the legislature, although advised beforehand of the constitutional question, might have prohibited all organizations and corporations under its control from teaching white and colored children together, and thus made at least uniform official action. The rule of construction in questions of this nature is the legislature would not pass the residue Charlestown, 2 Gray, 84, quoted approvingly by this court in Allen v. Louisiana, 103 U. S. 80-84, 26 L. ed. 318, 319:

'But if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislatute would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them.'

See also Loeb v. Columbia Twp. 179 U. S. 472, 490, 45 L. ed. 280, 290, 21 Sup. Ct. Rep. 174, 181, in which this court said:

'As one section of a statute may be repugnant to the Constitution without rendering the whole act void, so one provision of a section may be invalid by reason of its not conforming to the Constitution, while all the other provisions may be subject to not constitutional infirmity. One part may stand, while another will fall, unless the two are so connected or dependent on each other in subject-matter, meaning, or purpose, that the good cannot remain without the bad. The point is not whether the parts are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance, whether the provisions are so interdependent that one cannot operate without the other.'

Further, inasmuch as the court of appeals considered the act separable, and, while sustaining it as an entirety, gave an independent reason which applies only to corporations, it is obvious that it recognized the force of the suggestions we have made. And when a state statute is so interpreted, this court should hesitate before it holds that the supreme court of the state did not know what was the thought of the legislature in its enactment. Missouri K. & T. R. Co. v. McCann, 174 U. S. 580, 586, 46 L. ed. 1093, 1096, 19 Sup. Ct. Rep. 755; Tullis v. Lake Erie & W. R. Co. 175 U. S. 348, 353, 44 L. ed. 192, 194, 20 Sup. Ct. Rep. 136.

While the terms of the present charter are not given in the record, yet it was admitted on the trial that the defendant was a corporation organized and incorporated under the general statutes of the state of Kentucky, and of course the state courts, as well as this court on appeal, take judicial notice of those statutes. Further, in the brief of counsel for the defendant is given a history of the incorporation proceedings, together with the charters. From that it appears that Berea College was organized under the authority of an act for the incorporation of voluntary associations, approved March 9, 1854 (2 Stanton, Rev. Stat. [Ky.] 553), which act was amended by an act of March 10, 1856 (2 Id. 555), and which in terms reserved to the general assembly 'the right to alter or repeal the charter of any associations formed under the provisions of this act, and the act to which this act is an amendment, at any time hereafter.' After the Constitution of 1891 was adopted by the state of Kentucky, and on June 10, 1899, the college was reincorporated under the provisions of chap. 32, art. 8, Ky. Stat. (Carroll, Stat. [Ky.] 1903, p. 459), the charter defining its business in these words: 'Its object is the education of all persons who may attend its institution of learning at Berea, and, in the language of the original articles, 'to promote the cause of Christ." The Constitution of 1891 provided in § 3 of the Bill of Rights that 'every grant of a franchise, privilege, or exemption shall remain, subject to...