unincorporated associations? Are we to at-, teaching of the two races together, by anytribute such folly to legislators? Who can body, in the same institution at the same say that the legislature would have enacted time. It need not, in that view, have made one provision without the other? If not, any reference whatever to the 25-mile prothen, in determining the intent of the legis- vision in the 4th section as being "unrealature, the provisions of the statute relating sonable and oppressive," whether applied to to the teaching of the two races together by teaching by individuals or by corporations, corporations cannot be separated in its oper- or held such provision to be void on that ation from those in the same section that special ground. forbid such teaching by individuals and un- Some stress is laid upon the fact that incorporated associations. Therefore the when Berea College was incorporated the court cannot, as I think, properly forbear to state reserved the power to alter, amend, or consider the validity of the provisions that repeal its charter. If the state had, in refer to teachers who do not represent cor- terms, and in virtue of the power reserved, porations. If those provisions constitute, as, repealed outright the charter of the college, in my judgment, they do, an essential part the case might present a different question. of the legislative scheme or policy, and are But the charter was not repealed. The corinvalid, then, under the authorities cited, the poration was left in existence. The statwhole act must fall. The provision as toute here in question does not purport to corporations may be valid, and yet the other clauses may be so inseparably connected with that provision and the policy underlying it, that the validity of all the clauses necessary to effectuate the legislative intent must be considered. There is no magic in the fact of incorporation which will so transform the act of teaching the two races in the same school at the same time that such teaching can be deemed lawful when conducted by private individuals, but unlawful when conducted by the representatives of corporations. There is another line of thought. The state court evidently regarded it as necessary to consider the entire act; for it adjudged 66]*it to be competent for the state to forbid all teaching of the two races together, in the same institution, at the same time, no matter by whom the teaching was done. The reference at the close of its opinion, in the words above quoted, to the fact that the defendant was a corporation, which could be controlled as the state saw fit, was, as already suggested, only incidental to the main question determined by the court as to the extent to which the state could control the teaching of the two races in the same institution. The state court upheld the authority of the state, under its general police power, to forbid the association of the two races in the same institution of learning, although it adjudged that there were limitations upon the exercise of that power, and that, under those limitations, § 4 was invalid, because unreasonable and oppressive. If it had regarded the authority of the state over its own corporations as being, in itself, and without reference to any other view, sufficient to sustain the statute, so far as the defendant corporation is concerned, it need only have said that much, and omitted all consideration of the general power of the state to forbid the amend the charter of any particular corporation, but assumes to establish a certain rule applicable alike to all individuals, associations, or corporations that assume to teach the white and black races *together in [67 the same institution. Besides, it should not be assumed that the state intended, under the guise of impliedly amending the charter of a private corporation, to destroy, or that it could destroy, the substantial, essential purposes for which the corporation was created, and yet leave the corporation in existence. The authorities cited by this court, in its opinion, establish the proposition that, under the reserved power to amend or alter a charter, no amendment or alteration can be made which will "defeat or substantially impair the object of the grant." Holyoke Water Power Co. v. Lyman, 15 Wall. 500, 21 L. ed. 133; Close v. Glenwood Cemetery, 107 U. S. 466, 476, 27 L. ed. 408, 412, 2 Sup. Ct. Rep. 267. In my judgment the court should directly meet and decide the broad question presented by the statute. It should adjudge whether the statute, as a whole, is or is not unconstitutional, in that it makes it a crime against the state to maintain or operate a private institution of learning where white and black pupils are received, at the same time, for instruction. In the view which I have as to my duty I feel obliged to express my opinion as to the validity of the act as a whole. I am of opinion that, in its essential parts, the statute is an arbitrary invasion of the rights of liberty and property guaranteed by the 14th Amendment against hostile state action, and is, therefore, void. The capacity to impart instruction to others is given by the Almighty for beneficent purposes; and its use may not be forbidden or interfered with by government,certainly not, unless such instruction is, in its nature, harmful to the public morals or - 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. imperils the public safety. The right to | liberty inherent in the freedom secured by impart instruction, harmless in itself or ben- the fundamental law. Again, if the views of eficial to those who receive it, is a substan- the highest court of Kentucky be sound, that tial right of property, especially, where commonwealth may, without infringing the the services are rendered for compensation. Constitution of the United States, forbid the But even if such right be not strictly a prop- *association in the same private school of [69 erty right, it is, beyond question, part of pupils of the Anglo-Saxon and Latin races one's liberty as guaranteed against hostile respectively, or pupils of the Christian and state action by the Constitution of the Unit- Jewish faiths, respectively. Have we beed States. This court has more than once come so inoculated with prejudice of race said that the liberty guaranteed by the 14th than an American government, professedly Amendment embraces "the right of the citi- based on the principles of freedom, and 68]zen to be free in the enjoyment of all charged with the protection of all citizens his faculties," and "to be free to use them in alike, can make distinctions between such all lawful ways." Allgeyer v. Louisiana, 165 citizens in the matter of their voluntary U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. meeting for innocent purposes, simply be427; Adair v. United States, 208 U. S. cause of their respective races? Further, if 161, 173, 52 L. ed. 436, 442, 28 Sup. Ct. the lower court be right, then a state may Rep. 277. If pupils, of whatever race, cer- make it a crime for white and colored pertainly, if they be citizens,-choose, with the sons to frequent the same market places at consent of their parents, or voluntarily, to the same time, or appear in an assemblage of sit together in a private institution of learn- citizens convened to consider questions of ing while receiving instruction which is not a public or political nature, in which all in its nature harmful or dangerous to the citizens, without regard to race, are equally public, no government, whether Federal or interested. Many other illustrations might 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 chil-ing it a crime for any person to impart dren. 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 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 mak 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. STATE OF LOUISIANA, Complainant, V. States has no jurisdiction of a bill in equity JAMES RUDOLPH GARFIELD, Secretary eral Land Office. (See S. C. Reporter's ed. 70-78.) Statutes act of March 2, 1849, to certain lands which repeal by implication [No. 7, Original.] vember 9, 1908. Decided No RIGINAL BILL in equity, filed by the the issuance of a patent, that the provisions Rate of Louisiana against the Secre of this act be extended to and their benefits be conferred upon each of the other states in which such swamp and overflowed lands may be situated. [For other cases, see Statutes, 607, 608, in Digest Sup. Ct. 1908.] United States — immunity from suit suit against officers. 2. The Supreme Court of the United NOTE. On repeal of statutes by implica- | tion-see notes to State v. Massey, 4 L.R.A. 309; First Nat. Bank v. Weidenbeck, 38 C. C. A. 136; and United States v. Henderson, 20 L. ed. U. S. 235. tary of the Interior and the Commissioner The facts are stated in the opinion. case, however, on the ground that the An injunction against the infringement of Suit against Federal officers or agents as is part of a dry dock in a navy yard, put in suit against United States. The immunity of the United States from suit prevents a state from maintaining, in the Supreme Court of the United States, a suit against the Secretary of the Interior and the Commissioner of the General Land Office, to restrain them from allotting and patenting in severalty swamp lands within the limits of an Indian reservation. Oregon v. Hitchcock, 202 U. S. 60, 50 L. ed. 935, 26 Sup. Ct. Rep. 568. place by, and the property of, the United The inability to make the United States A suit to restrain the Secretary of the Interior from carrying out the provisions of the act of June 27, 1902 (32 Stat. at L. 400, chap. 1157), controlling the disposition of the pine lands ceded by the Indians of the state of Minnesota under the act of January 14, 1889 (25 Stat. at L. 642, chap. 24). But there is a class of cases which hold to the United States, to be administered for that the immunity of the United States from their benefit, and to require him to execute suit cannot successfully be pleaded in favor the trust and account.-is in effect a suitof officers and agents of the United States against the United States, which the courts when sued by private persons, for property have no jurisdiction to entertain. Naganab in their possession as such agents. v. Hitchcock, 202 U. S. 473, 50 L. ed. 1113. 26 Sup. Ct. Rep. 667. A suit by a state to enjoin the Secretary of the Interior and the Commissioner of the Land Office from selling school lands in an Indian reservation is a suit against the United States. Minnesota v. Hitchcock. 185 U. S. 373, 46 L. ed. 954, 22 Sup. Ct. Rep. 650. Jurisdiction was sustained in this The leading case on this question is United States v. Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep. 240, in which it was held by a vote of five to four that ejectment could be maintained against officers occupying, on behalf of the United States, land used for a military station and for a national cemetery. The majority relied largely on Meigs v. M'Olung, 9 Cranch, 11, 1 Messrs. Harvey M. Friend and George H. Lamar argued the cause and filed a brief for complainant: Executive officers of a state or of the United States may be proceeded against by mandamus when they refuse to execute a ministerial duty imposed upon them by law, wherein no political rights are involved, and wherein they are not vested with any further discretion in the matter at hand; and such officers may be proceeded against by writ of injunction when they are assuming to act under an unconstitutional statute, or are assuming to act without authority of law and in violation of the law, where there is no adequate remedy at law, and where the complainant will suffer irreparable injury thereby, or where an injunction is the only remedy that can be invoked to avoid a multiplicity of suits. Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60; Noble v. Union River Logging Co. 147 U. S. 165, 171, 37 L. ed. 123, 125, 13 Sup. Ct. Rep. 271. against on the ground that he is acting or assuming to act beyond the scope of his authority, in derogation of the rights of complainants, guaranteed to them by the law, have been cases against state officials. Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204; Davis v. Gray, 16 Wall. 220, 21 L. ed. 453; Board of Liquidation v. McComb, 92 U. S. 531, 23 L. ed. 623; Poindexter v. Greenhow, 114 U. S. 270, 29 L. ed. 185, 5 Sup. Ct. Rep. 903, 962; Allen v. Baltimore & O. R. Co. 114 U. S. 311, 29 L. ed. 200, 5 Sup. Ct. Rep. 925, 962 (these last two being known as the Virginia Coupon Cases); Pennoyer v. McConnaughy, 140 U. S. 1, 35 L. ed. 363, 11 Sup. Ct. Rep. 699; Stanley v. Schwalby, 147 U. S. 508, 37 L. ed. 259, 13 Sup. Ct. Rep. 418; Tindal v. Wesley, 167 U. S. 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 770; Scott v. Donald, 165 U. S. 58, 107, 41 L. ed. 632, 648, 17 Sup. Ct. Rep. 262, 265; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Prout v. Starr, 188 U. S. 537, 47 L. ed. 584, 23 Sup. Ct. Rep. 398; Ex parte Young, 209 U. S. 123, 52 L. ed. 714, 13 L.R.A. (N.S.) 932, 28 Sup. Ct. Rep. 441. The majority of the cases in this court in which an executive officer has been enjoined from executing an unconstitutional statute, or where such officer has been proceeded│· This case is on all fours with that of 3 L. ed. 639, where an action in ejectment and for a determination of his right to it. had successfully been maintained against Wells v. Nickles, 104 U. S. 444, 26 L. ed. Federal officers to recover land unlawfully 825. occupied and improved for military purposes. Other cases are to the same effect. Ejectment will lie against a Federal of dcer who claims possession of the disputed premises on behalf of the United States. Scranton v. Wheeler, 113 Mich. 565, 67 Am. St. Rep. 484, 71 N. W. 1091, affirmed in 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48. Ejectment may be maintained against an Army officer in the occupany of lands as such officer for a military post. McConnell v. Wilcox, 2 Ill. 344, reversed on other grounds in 13 Pet. 498, 10 L. ed. 264. Ejectment may be maintained against an Army officer occupying the demanded premises for the purpose of a military camp or fortification, under the direction of the Secretary of War and the President of the United States. Polack v. Mansfield, 44 Cal. 40, 13 Am. Rep. 151. Ejectment, or its equivalent, lies against officers employed by the United States to carry on the operations of a branch mint, who are in possession of the disputed premises on behalf of the Federal government. King v. La Grange, 61 Cal. 221; Dreux v. Kennedy, 12 Rob. (La.) 489. A suit to enjoin an Indian agent from unlawfully obstructing and attempting to eject a complainant when prospecting on lands of an Indian reservation, with a view to making a mineral location thereon, as he was authorized to do by an act of Congress, is not one against the United States, although such agent claims to be acting in his official capacity. Wadsworth v. Boysen, 78 C. C. A. 437, 148 Fed. 771. A suit by a riparian owner to prevent interference with his rights in a submerged water front by an officer of the United States, in possession of a pier built by the government, is not to be deemed a suit against the United States, of which a state court cannot take jurisdiction without the consent of the United States, although, in determining the question the court may have to consider whether the defendant could constitutionally acquire from the United States authority to obstruct the plaintiff's access to navigable water in front of his land without making or securing compensation to him. Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48. There are dicta to the contrary. Thus, in Carr v. United States, 98 U. S. The principle extends to other suits for 433, 25 L. ed. 209, Mr. Justice Bradley said alleged unlawful invasions of property that when the pleadings or the proofs in an rights by officers of the United States, act-action against the officers or agents of the ing on behalf of the government. government disclose that its possession is assailed, the jurisdiction of the court ought to cease. A person claiming to be the owner of timber seized by timber agents as belong ing to the United States may bring suit! against such agents to obtain an injunction to prevent them from selling the property, And in People v. Ambrecht, 11 Abb. Pr. 97, the court thought that the United States could not be indirectly sued in the persons 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: legislature intended them as a whole, and amendment, at any time hereafter." After that, if all could not be carried into effect, the Constitution of 1891 was adopted by the the legislature would not pass the residue state of Kentucky, and on June 10, 1899, independently, and some parts are unconsti- the college was reincorporated under the tutional, all the provisions which are thus provisions of chap. 32, art. 8, Ky. Stat. (Cardependent, conditional, or connected, must roll, Stat. [Ky.] 1903, p. 459), the charter fall with them." 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[57 of the Bill of Rights that "every grant of a franchise, privilege, or exemption shall remain, subject to revocation, alteration, or amendment." Carroll, Stat. (Ky.) 1903, p. 86. So that the full power of amendment was reserved to the legislature. "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 no 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 56] 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, 43 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 It is undoubtedly true that the reserved power to alter or amend is subject to some limitations, and that, under the guise of an amendment, a new contract may not always be enforceable upon the corporation or the stockholders; but it is settled "that a power reserved to the legislature to alter, amend, or repeal a charter authorizes it to make any alteration or amendment of a charter grant ed subject to it, which will not defeat or substantially impair the object of the grant, or any rights vested under it, and which the legislature may deem necessary to secure either that object or any public right. Inland Fisheries v. Holyoke Water Power Co. 104 Mass. 446, 451, 6 Am. Rep. 247; Holyoke Water Power Co. v. Lyman, 15 Wall. 500, 522, 21 L. ed. 133, 140;" Close v. Glenwood Cemetery, 107 U. S. 466, 476, 27 L. ed. 408, 412, 2 Sup. Ct. Rep. 267, 274. Construing the statute, the court of appeals held that "if the same school taught the different races at different times, though at the same place, or at different times at the same place, it would not be unlawful." Now, an amendment to the original charter, which does not destroy the power of the college to furnish education to all persons, but which simply separates them by time or place of instruction, cannot be said to "defeat or substantially impair the object of the grant." The language of the statute is not in terms an amendment, yet its effect is an amendment, and it would be resting too much on mere form to hold that a statute which in effect works a change in the terms of the charter is not to be considered as an amendment, because not so designated. The act itself, being separable, is to be read as though it, in one section, prohibited any person, in another section any corporation, and, in a third, any association of persons to do the acts named. Reading the statute as containing a separate prohibition on all corporations, at least, all state corporations, *it substantially declares that any [58 |