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that was decided by this court in the Slaughter-House Cases. But it asserts the right of the legislature to repeal such a statute, or to make a new one inconsistent with it, whenever, in the wisdom of such legis. lature, it is for the good of the public it should be done.
Nor does this proposition contravene the established principle that the legislature of a State may make contracts on many subjects which will bind it, and will bind succeeding legislatures for the time the contract bas to run, so that its provisions can neither be repealed nor its obligation impaired. The examples are numerous where this has been done and the contract upheld.
The denial of this power, in the present instance, rests upon the ground that the power of the legislature intended to be suspended is one so indispensable to the public welfare that it cannot be bargained away by contract. It is that well-known but undefined power called the police power.
We have not found a better definition of it for our present purpose than the extract from Kent's Commentaries in the earlier part of this opinion. “The power to regulate unwholesome trades, slaughter-houses, operations offensive to the senses," there mentioned, points unmistakably to the powers exercised by the Act of 1869, and the ordinances of the city under the Constitution of 1879. While we are not prepared to say that the legislature can make valid contracts on no subject embraced in the largest definition of the police power, we think that, in regard to two subjects so embraced, it cannot, by any contract, limit the exercise of those powers to the prejudice of the general welfare. These are the public health and public morals. The preservation of these is so necessary to the best interests of social organization that a wise policy forbids the legislative body to divest itself of the power to enact laws for the preservation of health and the repression of crime.
It cannot be permitted that, when the Constitution of a State, the fundamental law of the land, has imposed upon its legislature the duty of guarding, by suitable laws, the health of its citizens, especially in crowded cities, and the protection of their person and property by suppressing and preventing crime, that the power which enables it to perform this duty can be sold, bargained away, under any circumstances, as if it were a mere privilege which the legislator could dispose of at his pleasure.
This principle has been asserted and repeated in this court in the last few years in no ambiguous terms.
The first time it seems to have been distinctly and clearly presented, was in the case of Boyd v. Alabama, 94 U. S. 645. That was a writ of error to the Supreme Court of Alabama, brought by Boyd, who had been convicted in the courts of that State of carrying on a lottery contrary to law. In his defence, he relied upon a statute which authorized lotteries for a specific purpose, under which he held a license. The lepeal of this statute, which made his license of no avail against the general law forbidding lotteries, was asserted by his counsel to be void as
impairing the obligation of the contract, of which his license was evidence, and the Supreme Court of Alabama bad in a previous case held it to be a contract.
In Boyd's case, however, that court held the law under which his license was issued to be void, because the object of it was not expressed in the title, as required by the Constitution of the State. This court followed that decision, and affirmed the judgment on that ground.
But in the concluding sentences of the opinion by Mr. Justice Field, the court, to repel the inference that the contract would have been irrepealable, if the statute had conformed to the special requirement of the Constitution, said:
“We are not prepared to admit that it is competent for one legislature, by any contract with an individual, to restrain the power of a subsequent legislature to legislate for the public welfare, and to that end to suppress any and all practices tending to corrupt the public morals," citing Moore v. The State, 48 Miss. 147, and Metropolitan Board of Ercise v. Barrie, 34 N. Y. 657, 663
This cautionary declaration received the unanimous concurrence of the court, and a year later the principle became the foundation of the decision in the case of The Beer Company v. Mussachusetts, 97 U. S. 25, 28. [Here the court considers the case last named, and also Stone v. Mississippi, 101 U. S. 814, and Fertilizing Co. v. Hyde Park, 97 U. S. 659.]
These cases are all cited and their views adopted in the opinion of the Supreme Court of Louisiana in a suit between the saine parties in regard to the same matter as the present case, and which was brought to this court by writ of error and dismissed before a hearing by the present appellee.
The result of these considerations is that the Constitution of 1879 and the ordinances of the city of New Orleans, which are complained of, are not void as impairing the obligation of complainant's contract, and that T'he decree of the Circuit Court must be reversed, and the case re
manded to that court with directions to dismiss the bill,
1 Justices Field and BRADLEY (with the latter of whom agreed Justices HARLAN and Woods) gave concurring opinions, in which they again restated the views of the minority in the Slaughter-House Cases.
Fieli), J., said: “... As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all action, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the Declaration of Independence, that new evangel of liberty to the people: ‘We hold these truths to be self-evident,' — that is, so plain that their truth is recognized upon their mere statement, - 'that all men are endowed' - not by edicts of emperors, or decrees of Parliament, or acts of Congress, but by their Creator with certain inalienable rights,' — that is, rights which cannot be bartered away, or given away, or taken away except in punishment of crime. —'and that among these are life, liberty, and the pursuit of happiness, and to secure these '— not grant them, but secure
them --'governments are instituted among men, deriving their just powers from the consent of the governed.' Among these inalienable rights, as proclaimed in that great document, is the right of inen to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment. The common business and ca'lings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them, without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the l'nited States, and an essential element of that freedom which they claim as their birthright. It has been well said that, 'The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest en. croachment upon the just liberty both of the workman and of those who might be dis. posed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they thiuk proper.' – Adam Smith's Wealth of Nations, Bk. I. Chap. 10. ... The first section of the amendment is stripped of all its protective force, if its application be limited to the privileges and immunities of citizens of the United States as distinguished from citizens of the States, and thus its prohibition be extended only to the abridgment or impairment of such rights, as the right to come to the seat of government, . . . which are specified in the opinion in the Slaughter-House Cases as the special rights of such citizens. If thus limited, nothing was accomplished by adopting it. The States could not previously have interfered with these privileges and immunities, or any other privileges and immunities which citizens enjoyed under the Constitution and laws of the United States. . . . Whilst, therefore, I fully concur in the decision of the court that it was entirely competent for the State to annul the monopoly features of the original Act incorporating the plaintiff, I am of opinion that the Act, in creating the monopoly in an ordinary employment and business, was to that extent against common right and void.”
BRADLEY, J. (speaking also for Justices HARLAN and Woods), said : ...“I do not mean to say that there are no exclusive rights which can be granted, or that there are not many regulative restraints on civil action which may be imposed by law. . . . But this concession does not in the slightest degree affect the proposition (which I deem a fundamental one), that the ordinary pursuits of life, forming the large mass of industrial avocations, are and ought to be free and open to all, subject only to such general regulations, applying equally to all, as the general good may demand; and the grant to a favored few of a monopoly in any of these common callings is necessarily an outrage upon the liberty of the citizen as exhibited in one of its most important aspects, - the liberty of pursuit. . . . It abridges the privileges of citizens of the United States; it deprives them of a portion of their liberty and property without due process of law; and it denies to them the equal protection of the laws 1. I hold that the liberty of pursuit — the right to follow any of the ordinary callings of life — is one of the privi. leges of a citizen of the United States. ... 2. But if it does not abridge the privileges and immunities of a citizen of the United States to prohibit him from pursuing his chosen calling, and giving to others the exclusive right of pursuing it, it certainly does deprive him (to a certain extent) of his liberty; for it takes from him the freedom of adopting and following the pursuit which he prefers; which, as already intimated, is a material part of the liberty of the citizen. And, if a man's right to his calling is property, as many maintain, then those who had already adopted the prohibited pursuits in New Orleans, were deprived, by the law in question, of their property, as well as their liberty, without due process of law. 3. But still more apparent is the violation, by this monopoly law, of the last clause of the section, — no State shall deny to any person the equal protection of the laws.' If it is not a denial of the equal protection
STRAUDER v. WEST VIRGINIA.
SUPREME COURT OF THE UNITED STATES. 1879.
(100 U. S. 303.] ERROR to the Supreme Court of Appeals of the State of West Virginia.
The facts are stated in the opinion of the court.
Mr. Charles Devens and Mr. George 0. Davenport, for the plaintiff in error.
Mr. Robert White, Attorney-General of West Virginia, and Mr. James W. Green, contra.
Mr. Justice STRONG delivered the opinion of the court.
The plaintiff in error, a colored man, was indicted for murder in the Circuit Court of Ohio County, in West Virginia, on the 20th of October, 1874, and upon trial was convicted and sentenced. The record was then removed to the Supreme Court of the State, and there the judgment of the Circuit Court was affirmed. The present case is a writ of error to that court, and it is now, in substance, averred that at the trial in the State court the defendant (now plaintiff in error) was denied rights to which he was entitled under the Constitution and laws of the United States.
In the Circuit Court of the State, before the trial of the indictment was commenced, the defendant presented his petition, verified by his oath, praying for a removal of the cause into the Circuit Court of the United States, assigning, as ground for the removal, that, “ by virtue of the laws of the State of West Virginia no colored man was eligible to be a member of the grand jury or to serve on a petit jury in the State ; that white men are so eligible, and that by reason of his being a colored man and having been a slave, he had reason to believe, and did believe, he could not have the full and equal benefit of all laws and proceedings in the State of West Virginia for the security of his person as is enjoyed by white citizens, and that he had less chance of enforcing in the courts of the State his rights on the prosecution, as a citizen of the United States, and that the probabilities of a denial of them to him
of the laws to grant to one man, or set of men, the privilege of following an ordinary calling in a large community, and to deny it to all others, it is difficult to understand what would come within the constitutional prohibition. Monopolies are the bane of our body politic at the present day. In the eager pursuit of gain they are sought in every direction. They exhibit themselves in corners in the stock market and produce market, and in many other ways. If by legislative enactment they can be carried into the common avocations and callings of life, so as to cut off the right of the citizen to choose his avocation, the right to earn his bread by the trade which he has learned; and if there is no constitutional means of putting a check to such enormity, I can only say that it is time the Constitution was still further amended. In my jugment, the present Constitution is amply sufficient for the protection of the people if it is fairly interpreted and faithfully enforced.” – ED.
as such citizen on every trial which might take place on the indictment in the courts of the State were much more enhanced than if he was a white man.” This petition was denied by the State court, and the cause was forced to trial.
Motions to quash the venire, “because the law under which it was issued was unconstitutional, null, and void," and successive motions to challenge the array of the panel, for a new trial, and in arrest of judgment were then made, all of which were overruled and made by exceptions parts of the record.
The law of the State to which reference was made in the petition for removal and in the several motions was enacted on the 12th of March, 1873 (Acts of 1872–73, p. 102), and it is as follows: “ All white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided.” The persons excepted are State officials.
In this court, several errors have been assigned, and the controlling questions underlying them all are, first, whether, by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impanelled without discrimination against his race or color, because of race or color; and, second, if he has such a right, and is denied its enjoyment by the State in which he is indicted, may he cause the case to be removed into the Circuit Court of the United States ?
It is to be observed that the first of these questions is not whether a colored man, when an indictment has been preferred against him, has a right to a grand or a petit jury composed in whole or in part of persons of his own race or color, but it is whether, in the composition or selection of jurors by whom he is to be indicted or tried, all persons of his race or color may be excluded by law, solely because of their race or color, so that by no possibility can any colored man sit upon the jury. . . [Sect. 1 of the Fourteenth Amendment is here recited.]
This is one of a series of constitutional provisions having a common purpose ; namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy. The true spirit and meaning of the amendments, as we said in the Slaughter-House Cases, 16 Wall. 36, cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been babitual. It was well known that in some States laws making such discriminations then existed, and others might well be expected. The colored race, as a race, was abject and