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certificate to B., and arranged with him that there was to be no actual delivery of the stock between them, but that A. was to protect B. from loss if the market value of the stock advanced, and receive the difference in value from B., if it declined. There was no agreement that B. should not make actual delivery of the stock he was instructed to sell. B. sold accordingly, and afterwards the price rose. B. then borrowed from a fellow broker the necessary certificates to make delivery and did deliver them and receive payment therefor through his clearing-house sheet. The price still rising B. subsequently bought on A.'s order 500 like shares, to make good his loan, receiving them and paying for them also through his clearing-house sheet. He paid also the lender the amount of an intermediate dividend on the stock. In an action by B. against A. to recover the amount expended for A.'s use in these transactions, it was decided that B. could not recover, because the evidence showed that the transactions were mere gambling contracts, and as such contrary to law: Dickson v. Thomas, 97 Penn. St. 279.

It has been also held that money advanced by a principal to an agent to enable the latter to create a "corner" is not recoverable by the principal: Sampson v. Shaw, 101 Mass. 150. And see further In re Green, 15 Nat. Bank. Reg. 199.

From this brief review of the cases it appears that there is some conflict of authority upon the question whether where broker and principal are both engaged in a gambling transaction the former can recover for advances made on behalf of his principal; or conversely if those transactions result profitably, whether the principal can compel his broker to account for the profits.

There is no doubt whatever that a multitude of the transactions in grain, produce, stocks and securities are mere wagers upon fluctuations in prices. There

being no intention to accept or to deliver the commodity or security bought or sold, these "deals" are gambling transactions, and this form of gambling is of the most pernicious and demoralizing kind. It acquires a sort of quasi respectability from the fact that in form it is similar to the legitimate sales and deliveries of securities or commodities upon the great exchanges or boards of trade in the larger cities. Being gambling under the cloak of honest trading thousands engage in it who would never for a moment permit themselves to enter a "gambling-hell," and to bet upon the turn of a card. Clerks, school teachers, mechanics, farmers, men and women of every age and station in society are found" speculating" upon "margins," through commission men or brokers upon the exchanges or boards of trade, or personally upon the various "open boards" and "bucketshops," which within a few years past have been established in the larger cities as an evidence of the recent increase and magnitude of unhealthy speculation and fictitious trading.

It might be well, considering the pernicious and seductive character of this form of gambling, and its great increase within recent years, for courts to give the principle of law which declares wagering contracts in securities or produce to be illegal and void a liberal enforcement, so as to punish those who engage in such unlawful ventures, whether as principals or as agents by refusing to protect them against or to indemnify them for each other's breach of faith.

The example of the Pennsylvania and Wisconsin courts in refusing to countenance these speculative practices is commendable, and if vigorously followed by other tribunals cannot but have a wholesome influence in restraining this species of gambling.

Chicago.

ADELBERT HAMILTON.

Supreme Court of the United States.

THE UNITED STATES v. MURRAY STANLEY.

SAME v. MICHAEL RYAN.

SAME v. SAMUEL NICHOLS.

SAME v. SAMUEL D. SINGLETON.

ROBINSON v. MEMPHIS AND CHARLESTON RAILROAD CO.

The 1st and 2d sections of the Civil Rights Act, passed March 1st 1875, are unconstitutional enactments as applied to the several states, not being authorized either by the Thirteenth or Fourteenth Amendments of the Constitution.

The Fourteenth Amendment is prohibitory upon the states only, and the legislation authorized to be adopted by Congress for enforcing it is not direct legislation on the matters respecting which the states are prohibited from making or enforcing certain laws, or doing certain acts, but is corrective legislation, such as may be necessary or proper for counteracting and redressing the effect of such laws or acts.

The Thirteenth Amendment relates only to slavery and involuntary servitude (which it abolishes); and although, by its reflex action, it establishes universal freedom in the United States, and Congress may probably pass laws directly enforcing its provisions, yet such legislative power extends only to the subject of slavery and its incidents; and the denial of equal accommodations in inns, public conveyances and places of public amusement (which is forbidden by the sections in question), imposes no badge of slavery or involuntary servitude upon the party, but at most infringes rights which are protected from state aggression by the Fourteenth Amendment.

Whether the accommodations and privileges sought to be protected by the 1st and 2d sections of the Civil Rights Act are or are not rights constitutionally demandable, and if they are, in what form they are to be protected, is not now

decided.

Nor is it decided whether the law as it stands is operative in the territories and District of Columbia; the decision only relating to its validity as applied to the states.

Nor is it decided whether Congress, under the commercial power, may or may not pass a law securing to all persons equal accommodations on lines of public conveyance between two or more states.

The opinion of the court was delivered by

BRADLEY, J.-These cases are all founded on the 1st and 2d sections of the Act of Congress, known as the Civil Rights Act, passed March 1st 1875, entitled "An act to protect all citizens in their civil and legal rights:" 18 Stat. 335. Two of the cases, those against Stanley and Nichols, are indictments for denying to persons of color the accommodations and privileges of an inn or hotel; two of them, those against Ryan and Singleton, are, one an

information, the other an indictment, for denying to individuals the privileges and accommodations of a theatre, the information against Ryan being for refusing a colored person a seat in the dress circle of Maguire's theatre in San Francisco, and the indictment against Singleton being for denying to another person, whose color is not stated, the full enjoyment of the accommodations of the theatre known as the Grand Opera House in New York, "said denial not being made for any reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude." The case of Robinson and Wife against The Memphis & Charleston Railroad Co., was an action brought in the Circuit Court of the United States for the Western District of Tennessee, to recover the penalty of $500 given by the 2d section of the act, and the gravamen was the refusal by the conductor of the railroad company to allow the wife to ride in the ladies' car, for the reason, as stated in one of the counts, that she was a person of African descent. The jury rendered a verdict for the defendants in this case upon the merits under a charge of the court to which a bill of exceptions was taken by the plaintiffs. The case was tried on the assumption by both parties of the validity of the act of Congress; and the principal point made by the exceptions was that the judge allowed evidence to go to the jury tending to show that the conductor had reason to suspect that the plaintiff, the wife, was an improper person, because she was in company with a young man whom he supposed to be a white man, and on that account inferred that there was some improper connection between them, and the judge charged the jury, in substance, that if this was the conductor's bona fide reason for excluding the woman from the car, they might take it into consideration on the question of the liability of the company. The case is brought here by writ of error at the suit of the plaintiffs. The cases of Stanley, Nichols and Singleton, come up on certificates of division of opinion between the judges below as to the constitutionality of the 1st and 2d sections of the act referred to, and the case of Ryan, on a writ of error to the judgment of the Circuit Court for the District of California sustaining a demurrer to the information.

It is obvious that the primary and important question in all the cases, is the constitutionality of the law; for if the law is unconstitutional none of the prosecutions can stand.

The sections of the law referred to provide as follows:

"Sect. 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theatres and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

"Sect. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offence forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also, for every such offence, be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than $500 nor more than $1000, or shall be imprisoned not less than thirty days nor more than one year: Provided, that all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by state statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this provision shall not apply to criminal proceedings, either under this act or the criminal law of any state. And provided further, that a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively."

Are these sections constitutional? The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part. The essence of the law is not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances and theatres; but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. In other words, it is the purpose of the law to declare that, in the enjoyment of the accom modations and privileges of inns, public conveyances, theatres and other places of public amusement, no distinction shall be made between citizens of different race or color, or between those who have,

and those who have not, been slaves. Its effect is to declare that in all inns, public conveyances and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances and places of amusement as are enjoyed by white citizens; and vice versa. The second section makes it a penal offence in any person to deny to any citizen of any race or color, regardless of previous servitude, any of the accommodations or privileges mentioned in the first section.

Has Congress constitutional power to make such a law? Of course no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three amendments. The power is sought, first, in the XIVth Amendment, and the views and arguments of distinguished senators, advanced whilst the law was under consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments adduced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court; and we are bound to exercise it according to the best lights we have.

The first section of the XIVth Amendment (which is the one relied on), after declaring who shall be citizens of the United States, and of the several states, is prohibitory in its character, and plohibitory upon the states. It declares that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subjectmatter of the amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this but, in order that the national will thus declared may not be a mere brutum ful

VOL. XXXI.-100

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