Berea College v. Commonwealth

• Citation: 123 Ky. 209,94 S.W. 623
• Parties: BEREA COLLEGE v. COMMONWEALTH.
• Decision Date: 12 June 1906
• Court: Court of Appeals of Kentucky

94 S.W. 623

123 Ky. 209

BEREA COLLEGE v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 12, 1906

Appeal from Circuit Court, Madison County.

"To be officially reported."

Berea College was convicted on indictments for maintaining an institution of learning where persons of the white and negro races were both received, and appeals. Affirmed as to one indictment, and reversed and remanded as to the other.

John G Carlisle, C. F. Burnam, and Guy Ward Mallon, for appellant.

N. B Hays, Atty. Gen., and Chas. H. Morris, for the Commonwealth.

O'REAR J.

There were two indictments against appellant in the Madison circuit court, for alleged infractions of an act of the Legislature approved March 22, 1904, entitled "An act to prohibit white and colored persons from attending the same school." The first indictment, which was numbered 6,009 on the circuit court calendar, charged appellant with operating a school for whites and negroes in violation of the act. The second indictment, numbered 6,045, charges appellant with the offense of "maintaining and operating a college, school, and institution of learning where persons of the white and negro races are both received, and within a distance of twenty-five miles of each other, as pupils for instruction." The act alluded to, the title to which has been given above, is in the following words:

"Section 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 $1000, 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.

"Sec. 2. That any instructor who shall teach in any school, college or institution where members of said two races are received as pupils for instruction, shall be guilty of operating and maintaining same, and fined as provided in the first section hereof.

"Sec. 3. It shall be unlawful for any white person to attend any school or institution where negroes are received as pupils or receive instruction, and it shall be unlawful for any negro or colored person to attend any school or institution where white persons are received as pupils or receive instruction. Any person so offending shall be fined $50 for each day he attends such institution or school: provided, that the provisions of this law shall not apply to any penal institution or house of reform.

"Sec. 4. Nothing in this act shall be construed to prevent any private school, college or institution of learning from maintaining a separate and distinct branch thereof, in a different locality, not less than twenty-five miles distant, for the education exclusively of one race or color.

"Sec. 5. This act shall not take effect, or be in operation, before the 15th day of July, 1904."

Acts 1904, p. 181, c. 85.

Appellant was found guilty, and fined $1,000 in each case. These appeals involve the constitutionality of the statute. The cases are heard and disposed of together. Appellant Berea College is a private nonsectarian school. It was founded some 50 years ago, for the purpose, it is said, of "promoting the cause of Christ," and to give general and nonsectarian religious instruction to "all youth of good moral character." With a large endowment, extensive buildings and grounds and educational paraphernalia, it had for nearly 50 years before the act in question maintained a school at Berea, in Madison county, this state, presumably upon substantially the same basis as it was doing when the statute was enacted, and the indictments in these cases returned. The circuit court sustained the constitutionality of the act in every particular. Appellant assails its constitutionality upon the ground that it violates the Bill of Rights embraced in the Constitution of this state, as well as that it is in conflict with the fourteenth amendment to the Constitution of the United States.

It is claimed that the act is repugnant to the Bill of Rights, in that it violates the following, which are guaranties to every citizen: (1) The right of enjoying and defending their liberty. (2) The right of worshipping Almighty God according to the dictates of their own consciences. (3) The right of seeking and pursuing their safety and happiness. (4) The right of freely communicating their thoughts and opinions. (5) The right of acquiring and protecting property. (6) That every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.

The twenty-sixth section of the Bill of Rights concludes: "To guard against transgression of the high powers which we have delegated, we declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this constitution, shall be void."

Appellant's contention is: "This act violates the letter or spirit of every one of the provisions referred to. It destroys the rights of the teachers and pupils of Berea College to enjoy their liberties and the right of seeking and pursuing their safety and happiness. It denies the right to worship God according to the dictates of their own consciences by attending and participating in nonsectarian religious exercises in a school or institution of their own choice. It denies to the trustees, the teachers, and all others connected with the institution, the right to freely communicate their thoughts and opinions, and it denies to the institution itself and to its assistants and employés of every grade the right of acquiring and protecting property, and the right to follow their usual and innocent occupations."

We understand appellant's argument to reach to the conclusion that the exercise of police power by the state is prohibited concerning the subjects enumerated in the Bill of Rights; at least it is beneath those rights, and must be exercised so as not to conflict with them. No jurist has dared to attempt to state the limit in law of that quality in government which is exercised through what is termed the "police power." All agree that it would be inadvisable to attempt it. Yet very broadly and indefinitely speaking, it is the power and obligation of government to secure and promote the general welfare, comfort, and convenience of the citizens, as well as the public peace, the public health, the public morals, and the public safety. Cooley's Const. Limitations, 704; Tiedeman's Limitations of Police Power, 212; 1 Hare's American Constitutional Law, 766. It is not inaptly regarded in some of its most important features as the right of self-protection in government, the right of self-preservation in society. It inheres in every state, is fundamental in the existence of every independent government, enabling it to conserve the well-being of society, and prohibit all things hurtful to its comfort or inimical to its existence. In view of these definitions of the principle, unsatisfactory as they must be conceded to be, it is apparent that even those things reserved by the people in the Bill of Rights from the powers delegated to their magistrates are impliedly subject also to this power to preserve the state. It has always been so regarded, except wherein its exercise in a particular manner or of a particular thing is expressly excluded, or necessarily so by the language used. It would be more tedious than difficult to enumerate instances. But some of those most readily occurring to the mind which are held subject to this power, are, that life and liberty, either or both, may be forfeited by the citizen under laws enacted under it. The right of worshipping Almighty God according to the dictates of our own consciences--probably the first great moving cause of our early colonial civilization--yields to the proper exercise of this power. For example, the practices of polygamy, so inimical to the well-being of society, though deemed a religious rite, must yield to the police power of the state. If it were held here by some, as it is in some countries, a religious duty that mothers should worship God by sacrificing their babes, throwing them into the rivers to appease His supposed wrath, it would not be tolerated by the state, however conscientious the votary of the right. The pursuit of happiness in any useful and innocent employment, or the free movement of one's person, even when done under considerations of his own safety, are subject to this same power. The most familiar instance, probably, is the application of quarantine and health laws. Yet this power itself fortunately has its limitations. To be exercised exclusively within the discretion of the political branch of government, it must have a just and real relation to one of the ends for which that power may be lawfully employed. Mere declaration that the proposed exercise is in behalf of such end is not enough. The action must be cognate to one of the subjects to which the power properly pertains. The duty is upon the courts upon a proper application, to declare void an attempted exercise of such power, which is not fairly and reasonably related to a proper end. Thus balanced, there is little danger that oppression can result from its arbitrary employment. The good sense and the honest judgment of each generation must after all furnish the real limit to the police power of government. For each age must judge--and will judge--of what is hurtful to its welfare, of what endangers the existence of society, of what...