authority given by previous charters to in-, college, or institution after such conviction. struct the two races at the same time and in the same place is forbidden, and that prohibition, being a departure from the terms of the original charter in this case, may properly be adjudged an amendment. "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 1st section hereof. Again, it is insisted that the court of appeals did not regard the legislation as making an amendment, because another prose- "Sec. 3. It shall be unlawful for any cution instituted against the same corpora- white person to attend any school or instition under the 4th section of the act, which tution where negroes are received as pupils makes it a misdemeanor to teach pupils of or receive instruction, and it shall be unthe two races in the same institution, even lawful for any negro or colored person to atalthough one race is taught in one branch tend any school or institution where white and another in another branch, provided the persons are received as pupils or receive two branches are within 25 miles of each instruction. Any person so offending shall other, was held could not be sustained, the be fined $50 for each day he attends such incourt saying: "This last section, we think, stitution or school: Provided, That the proviolates the limitations upon the police visions of this law shall not apply to any power: it is unreasonable and oppressive." penal institution or house of reform. But, while so ruling, it also held that this "Sec. 4. Nothing in this act shall be consection could be ignored and that the re-strued to prevent any private school, colmainder of the act was complete notwith-lege, or institution of learning from mainstanding. Whether the reasoning of the taining a separate and distinct branch therecourt concerning the 4th section be satis-of, in a different locality, not less than 25 factory or not is immaterial, for no question miles distant, for the education exclusively of its validity is presented, and the court of of one race or color. appeals, while striking it down, sustained the balance of the act. We need concern ourselves only with the inquiry whether the 1st section can be upheld as coming within the power of a state over its own corporate creatures. We are of opinion, for reasons stated, that it does come within that power, and, on this ground, the judgment of the Court of Appeals of Kentucky is affirmed. "Sec. 5. This act shall not take effect, or be in operation, before the 15th day of July, 1904." Acts 1904, chap. 85, p. 181. The plaintiff in error, Berea College, is an incorporation, organized under the General Laws of Kentucky in 1859. Its original articles of incorporation set forth that the object of the founders was to establish and [60 maintain an institution of learning, “in order to promote the cause of Christ." In 1899 new articles were adopted, which pro Mr. Justice Holmes and Mr. Justice vided that the affairs of the corporation Moody concur in the judgment. Mr. Justice Harlan, dissenting: This prosecution arises under the 1st section of an act of the general assembly of Ken59]tucky, approved March 22d, 1904. *The purpose and scope of the act is clearly indicated by its title. It is "An Act to Prohibit White and Colored Persons from Attending the Same School." Ky. Acts 1904, p. 181. should be conducted by twenty-five persons. In 1904 the college was charged in a Kentucky state court with having unlawfully and wilfully received both white and negro persons as pupils for instruction. A demurrer to the indictment was overruled, and a trial was had which resulted in a verdict of guilty and the imposition of a fine of $1,000 on the college. The trial court refused an instruction asked by the defendant, to the effect that the statute was in violation It is well to give here the entire statute, of the 14th Amendment of the Constitution as follows: "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, of the United States. A motion in arrest of judgment and for a new trial having been overruled, the case was taken to the highest court of Kentucky, where the judgment of conviction was affirmed, one of the members of the court dissenting. The state court had before it and determined at the same time (delivering one opinion for both cases) another case against Berea College,-which was an indictment based on 84 of the same statute,—under which the college was convicted of the of fense of "maintaining and operating a col tion, the bill must be dismissed. But before giving the reasons for our opinion, the course taken by the argument for the United States makes it proper to state a portion of that argument that does not command our assent. certain swamp lands which it claims under, we are of opinion that, even on that assumpthe statutes of the United States, and to enjoin the defendants against carrying out an order making a different disposition of the lands. The defendants demur on the grounds that this really is a suit against the United States, which has not consented to be sued, that the title never has passed from the United States, and that the remedy, if any, would be at law. as The next year after the act of 1849, another act was passed, which granted [76 swamp lands to the state of Arkansas. It The act of March 2, 1849, chap. 87, 9 provided for a list, required the Secretary of Stat. at L. 352, purported to grant to the the Interior to issue a patent for the lands state of Louisiana the whole of the swamp at the request of the governor, and then enand overflowed lands therein, and provided acted that, "on that patent," the fee simple that, on approval of a list of such lands by to the lands should vest in the state. The the Secretary of the Treasury (afterwards 4th section was more general: "That the succeeded by the Secretary of the Interior), provisions of this act be extended to, and the fee simple to the same should vest in the their benefits be conferred upon, each of the 75]state. Certain lands were excluded, *but other states of the Union in which such those in dispute were not by any express swamp and overflowed lands, known words. They belonged, however, to the Fort designated as aforesaid, may be situated." Sabine Military Reservation, established by Act of September 28, 1850, chap. 84, 9 the President on December 20, 1838, and al- Stat. at L. 519. It is argued that this so though included in a list submitted under far repealed the special act of 1849 that the statute, approval of the inclusion was thereafter the title would not pass on simple suspended or denied. On March 25, 1871, approval, as provided therein, but a patent the Fort Sabine Military Reservation was was necessary. As we understand, the conabandoned by Executive order, in pursu- tinuous construction of the Department has ance of the act of February 24, 1871, chap. been to the contrary, and a great number of 68, 16 Stat. at L. 430, which authorized the titles to a very large amount of land would Secretary of War to transfer it to the con- be disturbed if we should accede to this artrol of the Secretary of the Interior, to be gument. We see no reason for overthrowsold for cash. On October 31, 1895, the ing the long-continued understanding that Secretary of the Interior decided that the the special provisions for Louisiana were land was included in the grant of the act not affected by a general clause, evidently of 1849, subject to the right of the United | intended to extend benefits to states that States to use it for military purposes until did not enjoy them at the time, not to abandoned. On December 10, 1895, pursu- change the mode of conveyance previously ant to his decision, the Secretary indorsed established in a case where the benefit alupon a list of these lands that it was "ap-ready had been conferred. We may add proved to the state of Louisiana under the that we assume that, if approval was suffiact of Congress of March 2, 1849, as sup- cient to pass the title, the form of words plemented and enlarged by the act of Con- used by the Secretary of the Interior on gress of September 28, 1850 (9 Stat. at L. December 10, 1895, had that effect, notwith519, chap. 84), subject to any valid adverse standing the reference to the act of 1850, rights that may exist." The plaintiff says whatever may have been his understanding that thereupon the title passed. or intent. On June 6, 1904, the Secretary of the Interior ordered that his predecessor's approval of the list be vacated, and that the lands should be held for disposition as provided by law, on the ground that they were not within the grant of the act of 1849, because at that time embraced in a military| reservation. This decision has been upheld and finally affirmed by the present Secretary, the defendant in this case, and the result is the bringing of this bill. We will assume, for purposes of decision, that, if the United States clearly had no title to the land in controversy, we should have jurisdiction to entertain this suit, for A further argument was presented that, if a patent was not necessary under the act of 1850, then a certificate by the Land Commissioner was made so by the act of August 3, 1854 (10 Stat. at L. 346, chap. 201, Rev. Stat. § 2449, U. S. Comp. Stat. 1901, p. 1516). But that law does not require so extended an application. We shall assume, for purposes of decision, that it is satisfied if confined according to its words to lands to which the act of 1849 did not purport "to convey the fee-simple title." Leaving the foregoing arguments on one side, we nevertheless *are of opinion that[77 the bill must fail. The land in controversy nell, Plffs. in Err., V. STATE OF NEW JERSEY. (See S. C. Reporter's ed. 78-127.) Constitutional law - privileges and immunities-self-incrimination. had been withdrawn from the public do- | ALBERT C. TWINING and David C. Cor. main by reservation at the time when the act of 1849 was passed, and the general words of that act must be read as subject to an implied exception, under the rule laid down in Scott v. Carew, 196 U. S. 100, 109, 49 L. ed. 403, 405, 25 Sup. Ct. Rep. 193, and the earlier cases there cited. The case is not one where the approval proceeded upon a mistake of fact with regard to a matter on which it was necessary that the Secretary should pass. See Noble v. Union River Logging R. Co. 147 U. S. 165, 173, 174, 37 L. ed. 123, 126, 127, 13 Sup. Ct. Rep. 271. The approval proceeded upon a manifest mistake of law; that upon the abandonment of the military reservation the land fell within the terms of the grant of 1849. Therefore it was void upon its face. The only doubt is raised by the statute limiting suits by the United States to vacate patents to five years. Act of March 3, 1891, chap. 561, § 8, 26 Stat. at L. 1099. It 1. Exemption from self-incrimination, though secured as against Federal action by U. S. Const., 5th Amend., is not one of the fundamental rights of national citizenship, so as to be included among the privi leges and immunities of citizens of the United States which the states are forbidden by the 14th Amendment to abridge. [For other cases, see Constitutional Law, 180a196, 380-401, in Digest Sup. Ct. 1908.] Constitutional law - due process of law - self-incrimination. not safeguarded as against state action by 2. Exemption from self-incrimination is the provision of U. S. Const. 14th Amend., that no state shall deprive any person of life, liberty, or property without due process of law. Due process of law in criminal matters, see Constitutional Law, 779-830, in Digest Sup. [No. 10.] may be that this act applies to approvals when they are given the effect of patents as well as to patents, which alone are named. In United States v. Chandler-Dunbar Water Argued March 19, 20, 1908. Decided NoPower Co. 209 U. S. 447, 52 L. ed. 881, 28 Sup. Ct. Rep. 579, it was decided that vember 9, 1908. this act applied to patents even if void beIN ERROR to the Court of Errors and cause of a previous reservation of the land, and it was said that the statute not merely took away the remedy, but validated the patent. The doubt is whether Louisiana has not now a good title by the lapse of five years since the approval and by the opera tion of that act. But that doubt cannot be resolved in this case. It raises questions of law and of fact upon which the United States would have to be heard. The United States fairly might argue that the statute of limitations was confined to patents, or was excluded by the act of 1871. If it yielded those points it still reasonably might maintain that a title could not be acquired under the statute by a mere void approval on paper, if the United States ever since had been in possession; claiming title, as it claimed it earlier by the act of 1871. It might argue that, for equitable relief on the ground of title in the plaintiff, in the teeth of the last-named act, 78] it would be necessary at *least to allege that the state took and has held possession under the void grant. The United States might, and undoubtedly would, deny the fact of such possession, and that fact cannot be tried behind its back. It follows that the United States is a necessary party and that we have no jurisdiction of this suit. Bill dismissed. Appeals of the State of New Jersey to review a judgment which affirmed a judg ment of the Supreme Court of that state, affirming a conviction in the Court of Quarter Sessions of the County of Monmouth of having knowingly exhibited a false paper to a bank examiner, with intent to deceive. Affirmed. See same case below, 73 N. J. L. 683, 64 Atl. 1073, 1135. Statement by Mr. Justice Moody: Albert C. Twining and David C. Cornell, the plaintiffs in error, hereafter called the defendants, were indicted by the grand jury of Monmouth county, in the state of New Jersey. The indictment charged that the defendants, being directors of the Monmouth Trust & Safe Deposit Company, knowingly exhibited a false paper to Larue Vreedenberg, an examiner of the state banking department, with intent to deceive him as to the condition of the company. Such an act is made a misdemeanor by a statute of the state (P. L. 1899, p. 450, at 461), which is as follows: "Every director, officer, agent, or clerk of ingly subscribes or makes any false stateany trust company who wilfully and knowment of facts or false, entries in the books of such trust company, or knowingly subscribes or exhibits any false paper, with intent to deceive any person authorized to examine as to the condition of such trust 79-82 company, or wilfully or knowingly subscribes to or makes any false report, shall be guilty of a high misdemeanor and punished accordingly." The defendants were found guilty on March Monmouth Trust & Safe Deposit Company, A special meeting of the board of directors of this company was held at the office of the company on Monday, Feb. 9th, 1903. There were present the following direct ors: George F. Kroehl, S. A. Patterson, G. B. M. Harvey, A. C. Twining, D. C. Cornell. The minutes of the regular meeting held Jan. 15th, 1903, were read, and on motion duly approved. All loans taken since the last meeting were gone over carefully, and, upon motion duly seconded, were unanimously approved. A resolution that this company buy 381 shares of the stock of the First National Bank at $44,875 was adopted. On motion the meeting adjourned. This was the paper referred to in the in prose dictment, and it was incumbent on the said: "Now, gentlemen, was this paper false? 81]In the first place, *the paper charged in the indictment, certifies in effect that a spe- "Now, was that meeting held or not? "That paper says that at this meeting were present, among others, Patterson, Twining, and Cornell. "Mr. Patterson has gone upon the stand no such and has testified that there was meeting to his knowledge; that he was not present at any such meeting; that he had no notice of any such meeting; and that he never acquiesced, as I understand, in any way, in the passage of a resolution for the purchase of this stock. "Now, Twining and Cornell, this paper says, were present. They are here in court and have seen this paper offered in evidence, and they know that this paper says that they were the two men, or two of the men, who were present. gone upon the stand.to deny that they were present or to show that the meeting was held. Neither of them has "Now, it is not necessary for these men It is not necesto prove their innocence. sary for them to prove that this meeting was held. But the fact that they stay off the stand, having heard testimony which might be prejudicial to them, without availing themselves of the right to go upon the stand and contradict it, is sometimes a matter of significance. "Now, of course, in this action, I do not see how that can have much weight, because these men deny that they exhibited the paper, and if one of these men exhibited the paper and the other did not, I do not see how you could say that the person who claims he did not exhibit the paper would be under any obligation at all to go upon the stand. Neither is under any obligation.[82 It is simply a right they have to go upon the stand, and, consequently the fact that they do not go upon the stand to contradict this statement in the minutes, they both denying, through their counsel and through their plea, that they exhibited the paper, I do not see that that can be taken as at all prejudicial to either of them. They simply have the right to go upon the stand, and they have not availed themselves of it, and it may be that there is no necessity for them to go there. I leave that entirely to you." Further, in that part of the charge relat211 U. S. liberty inherent in the freedom secured by the fundamental law. Again, if the views of the highest court of Kentucky be sound, that commonwealth may, without infringing the Constitution of the United States, forbid the *association in the same private school of [69 pupils of the Anglo-Saxon and Latin races respectively, or pupils of the Christian and Jewish faiths, respectively. Have we become so inoculated with prejudice of race than an American government, professedly based on the principles of freedom, and charged with the protection of all citizens alike, can make distinctions between such citizens in the matter of their voluntary meeting for innocent purposes, simply because of their respective races? Further, if the lower court be right, then a state may make it a crime for white and colored persons to frequent the same market places at the same time, or appear in an assemblage of citizens convened to consider questions of a public or political nature, in which all citizens, without regard to race, are equally interested. Many other illustrations might imperils the public safety. The right to impart instruction, harmless in itself or beneficial to those who receive it, is a substantial right of property, especially, where the services are rendered for compensation. But even if such right be not strictly a property right, it is, beyond question, part of one's liberty as guaranteed against hostile state action by the Constitution of the United States. This court has more than once said that the liberty guaranteed by the 14th Amendment embraces "the right of the citi68]zen to be free in the enjoyment of all his faculties,” and “to be free to use them in all lawful ways." Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; Adair v. United States, 208 U. S. 161, 173, 52 L. ed. 436, 442, 28 Sup. Ct. Rep. 277. If pupils, of whatever race, certainly, if they be citizens,-choose, with the consent of their parents, or voluntarily, to sit together in a private institution of learning while receiving instruction which is not in its nature harmful or dangerous to the public, no government, whether Federal or state, can legally forbid their coming to-be given to show the mischievous, not to say gether, or being together temporarily, for such an innocent purpose. If the commonwealth of Kentucky can make it a crime to teach white and colored children together at the same time, in a private institution of learning, it is difficult to perceive why it may not forbid the assembling of white and colored children in the same Sabbath school, for the purpose of being instructed in the Word of God, although such teaching may be done under the authority of the church to which the school is attached as well as with the consent of the parents of the children. So, if the state court be right, white and colored children may even be forbidden to sit together in a house of worship or at a communion table in the same Christian church. In the cases supposed there would be the same association of white and colored persons as would occur when pupils of the two races sit together in a private institution of learning for the purpose of receiving instruction in purely secular matters. Will it be said that the cases supposed and the case here in hand are different, in that no government, in this country, can lay unholy hands on the religious faith of the people? The answer to this suggestion is that, in the eye of the law, the right to enjoy one's religious belief, unmolested by any human power, is no more sacred nor more fully or distinctly recognized than is the right to impart and receive instruction not harmful to the public. The denial of either right would be an infringement of the cruel, character of the statute in question, and how inconsistent such legislation is with the great principle of the equality of citizens before the law. Of course, what I have said has no refer ence to regulations prescribed for public schools, established at the pleasure of the state and maintained at the public expense. No such question is here presented and it need not be now discussed. My observations have reference to the case before the court, and only to the provision of the statute making it a crime for any person to impart harmless instruction to white and colored pupils together, at the same time, in the same private institution of learning. That provision is, in my opinion, made an essential element in the policy of the statute, and, if regard be had to the object and purpose of this legislation, it cannot be treated as separable nor intended to be separated from the provisions relating to corporations. The whole statute should therefore be held void; otherwise, it will be taken as the law of Kentucky, to be enforced by its courts, that the teaching of white and black pupils, at the same time, even in a private institution, is a crime against that commonwealth, punishable by fine and imprisonment. *In my opinion the judgment should[70 be reversed upon the ground that the statute is in violation of the Constitution of the United States. Mr. Justice Day also dissents. |