"It is a guaranty of protection against the acts of the State government itself. It is a guaranty against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the State, not a guaranty against the commission of individual offenses; and the power of Congress, whether express or implied, to legislate for the enforcement of such a guaranty, does not extend to the passage of laws for the suppression of crime within the States. The enforcement of the guaranty does not require or authorize Congress to perform "the duty that the guaranty itself supposes it to be the duty of the State to perform, and which it requires the State to perform'" (U. S. Supreme Court Reporter 106, vol. 1-2, p. 608).

"Section 5519 of the Revised Statutes is not limited to take effect only in case the State shall abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty, or property without due process of law, or deny to any person the equal protection of the laws. It applies, no matter how well the State may have performed its duty. Under it private persons are liable to punishment for conspiring to deprive any one of the equal protection of the laws enacted by the State.

"In the indictment in this case, for instance, which would be a good indictment under the law if the law itself were valid, there is no intimation that the State of Tennessee has passed any law or done any act forbidden by the 14th amendment. On the contrary, the gravamen of the charge against the accused is that they conspired to deprive certain citizens of the United States and of the State of Tennessee of the equal protection accorded them by the laws of Tennessee.

"As, therefore, the section of the law under consideration is directed exclusively against the action of private persons, without reference to the laws of the States, or their administration, by the offices of the State, we are clear in the opinion that it is not warranted by any clause in the 14th amendment to the Constitution (U. S. Supreme Court Reporter 106, vol. 1-2, p. 609–610).

In its further discussion of Section 5519 of the Revised Statutes in light of the 14th amendment the Court further observed.

"It was never supposed that the section under consideration conferred on Congress the power to enact a law which would punish a private citizen for an invasion of the rights of his fellow citizens, conferred by the State of which they were both residents on all its citizens alike.

"We have, therefore, been unable to find any constitutional authority for the enactment of section 5519 of the Revised Statutes. The decisions of this court above referred to leave no constitutional ground for the act to stand on" (U. S. Supreme Court Reporter 106, vol. 1-2, p. 613).

In reaching its decision in the Harris case the Court also summed up that portion of the holding in the Slaughterhouse cases (16 Wall. 36):

"It is perfectly clear, from the language of the first section, that its purpose also was to place a restraint upon the action of the States. In the Slaughterhouse cases (16 Wall. 36), it was held by the majority of the court, speaking through Mr. Justice Miller, that the object of the second clause of the first section of the 14th amendment was to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, and this was conceded by Mr. Justice Field, who expressed the views of the dissenting justices in that case. In the same case, the court, referring to the 14th amendment, said that "if the States do not conform their laws to its requirements, then by the 5th section of the article of amendment Congress was authorized to enforce it by suitable legislation" only (U. S. Supreme Court Reporter 106, vol. 1-2, p. 608). The court in Strauder v. State of West Virginia (100 U. S. 664), favorably passing upon an application by a colored man, indicted for murder to have his case transferred on the basis of section 641 of the revised statutes, declared as follows: "When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judcial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next circuit court to be held in the district where it is pending, considered, and held not to be in conflict with the Federal Constitution."

Stated as follows regarding the 14th amendment:

"The 14th amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as

possible. Its language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any State action that denies this immunity to a colored man is in conflict with the Constitution" (U. S. Supreme Court Reports 98-101, p. 666).

In Ex Parte, Commonwealth of Virginia (100 U. S. 667), involving the same section of the Revised Statutes (sec. 641, Supra) the Court made the following observation.

"The provisions of the 14th amendment of the Constitution we have quoted all have reference to state action exclusively, and not to any action of private individuals. It is the State which is prohibited from denying to any person within its jurisdiction the equal protection of the laws and, consequently, the statutes partially enumerating what civil rights colored men shall enjoy equally with white persons, founded as they are upon the amendment, are intended for protection against State infringement of those rights. Section 641 was also intended for their protection against State action, and against that alone" (U. S. Supreme Court Reports 98-101, p. 669).

Regarding the rights of Congress to enact legislation, pursuant to the 14th amendment and concerning the particular right statute involved, it was also observed by the Court in this case:

"The Civil Rights Act, to which reference is made in the section in question was only intended to secure to the colored race the same rights and privileges as are enjoyed by white persons; it was not designed to relieve them from those obstacles in the enjoyment of their rights to which all other persons are subject, and which grow out of popular prejudices and passions.

"The denial of rights or the inability to enforce them, to which the section refers, is, in my opinion, such as arises from legislative action of the State, as for example, an act excluding colored persons from being witnesses, making contracts, acquiring property, and the like. With respect to obstacles to the enjoyment of rights arising from other causes, persons of the colored race must take their chances of removing or providing against them with the rest of the community.

"This conclusion is strengthened by the provisions of the 14th Amendment to the Constitution. The original Civil Rights Act was passed, it is true, before the adoption of that amendment; but great doubt was expressed as to its validity, and to obtain authority for similar legislation, and thus obviate the objections which had been raised to its 1st section, was one of the objects of the amendment. After its adoption the Civil Rights Act was re-enacted, and upon the 1st section of that Amendment it rests. That section is directed against the State. Its language is that 'No States 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.' As the State, in the administration of its government, acts through its executive, legislative, and judicial departments, the inhibition applies to them. But the executive and judicial departments only construe and enforce the laws of the State; the inhibition, therefore, is, in effect, against passing and enforcing any laws which are designed to accomplish the ends forbidden. If an executive or judicial officer exercises power with which he is not invested by law, and does unauthorized acts, the State is not responsible for them. The action of the judicial officer in such a case, where the rights of a citizen under the laws of the United States are disregarded, may be reviewed and corrected or reversed by this court; it cannot be imputed to the State, so as to make it evidence that she, in her sovereign or legislative capacity, denies the rights invaded, or refuses to allow their enforcement. It is merely the ordinary case of an erroneous ruling of an inferior tribunal. Nor can the unauthorized action of an executive officer, impinging upon the rights of the citizen, be taken as evidence of her intention or policy so as to charge upon her a denial of such rights." (U. S. Supreme Court Reports 98-101, pp. 674-675.)

In another case entitled Ex Parte Commonwealth Virginia, a judge was charged with violating that section of 18 Statutes at Large 336 (act of March 1, 1875) which provides as follows:

"No citizen, possessing all other qualifications which are or may be prescribed by law, shall be disqualified from service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition or servitude; and any officer or other person, charged with any duty in the selection or summoning of jurors, who shall exclude or fail to summon any citizen, for

the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor and be fined not more than $5,000," examined, and held to be authorized by the 13th and 14th amendments of the Constitution, which Congress is given power to enforce by appropriate legislation." (U. S. Supreme Court Reports 98-101, p. 677.)

The effect of this decision was to enlarge the prohibition contained in the 14th amendment to extend to actions by State agencies, and public officials. In this connection the head notes of the case sum up clearly the holding.

"The inhibition contained in the 14th amendment means that no agency of the State, nor of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. Otherwise the constitutional inhibition has no meaning and the State has clothed one of its agents with power to annul or evade it.

"The constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and to insure to all persons the enjoyment of such rights. Power was given to Congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons; not upon the abstract thing denominated a State, but upon the persons who are the agents of the State in the denial of the rights which were intended to be secured. Such is the act of March 1, 1875, and is fully authorized by the Constitution.

"The act of the defendant, in selecting jurors, was a ministerial, not a judicial act; and being charged with the performance of that duty, although he derived his authority from the State, he was bound, in the discharge of his duties, to obey the Federal Constitution and the laws passed in pursuance thereof." (U.S. Supreme Court Reports 98–101, page 677).

In this same connection Shelley v. Supreme Court, and Shelley v. Kraemer (68 Supreme Court 836) had before it the question of a court's enforcement of restrictions of sales of property to Negroes. In holding that the action of the State court in enforcing such covenants was the action of the State itself, the Court observed as follows:

"That the action of State courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the 14th amendment, is a proposition which has long been established by decisions of this Court. That principle was given expression in the earliest cases involving the construction of the terms of the 14th amendment."

Pursuing further the theory that Congress can only enact laws to enforce provisions of the 14th amendment and remembering that the prohibition contained in the 14th amendment only extends to action by the States and agents of the State and considering further that the bill in question undoubtedly protects rights of citizens violated by other private citizens, it is important to observe the following language used by the Court.

"Since the decision of this Court in the Civil Rights Cases, 1883 (109 U. S. 3, 3 Sup. Ct. 18, 27 L. ed. 835), the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the 14th amendment is only such action as may fairly be said to be that of the States. Tha amendment erects no shield against merely private conduct, however discriminatory or wrongful.

"We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as a violation of any rights guaranteed to petitioners by the 14th amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated. Cf. Corrigan v. Buckley, supra." (68 Supreme Court Reporter, page 842.)

(This case contains a good summary of the important jurisprudence limiting the extent to which Congress can go in enacting legislation pursuant to the 14th amendment.)

In Love v. Chandler (124 F. 2d, p. 785), the Court again reiterated the following theory in discussing statutes enacted under the 14th amendment.

"The statutes were intended to provide for redress against State action and primarily that which discriminated against individuals within the jurisdiction of the United States. Hague v. Committee for Industrial Organizations (307 U. S. 496, 509-514, 59 Sup. Ct. 954, 83 L. ed. 1423); Hodges v. United States (203 U. S.

1, 14-20, 27 Sup. Ct. 6, 52 L. ed. 65) Logan v. United States (144 U. S. 263, 290, 291, 12 Sup. Ct. 617, 36 L. ed. 429). The statutes, while they granted protection to persons from conspiracies to deprive them of the rights secured by the Constitution and laws of the United States (United States v. Mosley 238 U. S. 383, 387, 388, 35 Sup. Ct. 904, 59 L. ed. 1355), did not have the effect of taking into Federal control the protection of private rights against invasion by individuals. v. United States (203 U. S. 1, 14-20, 27 Sup. Ct. 6, 51 L. ed. 65); Logan v. United States (144 U. S. 263, 282-293, 12 Sup. Ct. 617, 36 L. ed. 429.")

Hodges

"The complaint states that, by appellees' acts, appellant 'has been denied the benefits and rights granted him under and by the 14th amendment to the Constitution of the United States.' The conclusion is erroneous, for the 14th amendment does not grant or secure any right to practice medicine or surgery in Arizona. Furthermore, rights secured by the 14th amendment are thereby secured against State action only. Appellant complains, not of State action, but of the acts of individuals-appellees. The complaint does not state that appellees are, or ever were, officers, agents, or employees of the State, or that they are, or ever were, empowered to act for and on behalf of the State, or that they have at any time so acted." (139 Reporter, 2d Series, p. 146, Swank v. Patterson et al.)

"(1) The amendment and the legislation are directed only against activities of the State and of its authorized agents. It does not create or add to the rights of one citizen as against another; it is, rather, a guranty against encroachment by the State and its authorized agents upon the rights of the citizen under the Constitution of the United States. United States v. Cruikshank (92 U. S. 542, 23 L. ed. 588); Civil Rights cases (109 U. S. 3, 3 Sup. Ct. 18, 27 L. ed. 835); Hodges v. United States (203 U. S. 1, 27 Sup. Ct. 6, 51 L. ed. 65; United States v. Powell (C. C., 151 F. 648, affirmed 212 U. S. 564, 29 Sup. Ct. 690, 53 L. ed. 653); United States v. Wheeler (D. C. 254 F 611, affirmed 254 U. S. 281, 41 Sup. Ct. 133, 65 L. ed. 270)." United States v. Trierweiler, 52 F. Supp. p. 5.

In the case of Screws et al v. United States (65 Supreme Court Reporter, p. 31) several peace officers were indicted, because of their beating to death of a Negro under the section 20 of the Criminal Code (18 U. S. C. 52), which provides as follows:

"Whoever, under color of any law, statute, ordinance, reguìation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both."

In connection with its holding, the following language is of interest:

"It is only State action of a 'particular character' that is prohibited by the 14th amendment and against which the amendment authorizes Congress to afford relief. Civil Rights Cases (109 U. S. 3, 11, 13, 3 S. Ct. 18, 21, 23, 27, L. ed. 835). Thus Congress, in section 20 of the Criminal Code, did not undertake to make all torts of State officials Federal crimes. It brought within section 20 only specified acts done 'under color' of law and then only those acts which deprived a person of some right secured by the Constitution or laws of the United States. "This section was before us in United States v. Classic (313 U. S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. ed. 1368); where we said: 'Misuse of power, possessed by virtue of State law and made possible only because the wrongdoer is clothed with the authority of State law, is action taken "under the color of" State law.' In that case, State election officials were charged with failure to count the votes as cast, alteration of the ballots, and false certification of the number of votes cast for the respective candidates (313 U. S. at pp: 308, 309, 61 S. Ct. at pp. 1034, 1035, 85 L. ed. 1368). We stated that those acts of the defendants 'were committed in the course of their performance of duties under the Louisiana statute requiring them to count the ballots, to record the result of the count, and to certify the result of the election'" (U. S. 65 S. Ct. p. 1039).

Fourteenth corpus juris secundum, at page 1161, in discussing the problem with which we are involved observes as follows:

"The rights and privileges secured or guaranteed by the 13th, 14th, and 15th amendments to the Constitution of the United States are subjects of legitimate protection by the law-making power of the Federal Government under the power expressly conferred on Congress to enforce the provisions conferring these rights by appropriate legislation. Generally speaking, whatever legislation is

appropriate, that is adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.

"Under the 13th amendment the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating on the acts of individuals, whether or not sanctioned by State legislation. There is a distinction, however, between the powers of Congress under the 13th amendment and its powers under the 14th amendment.

"Under the 14th amendment, the legislation must necessarily be, and can only be, corrective in its character, addressed to counteract and to afford relief against State regulations or proceedings. A similar view has been taken in respect of the 15th amendment. The 14th amendment does not empower Congress to legislate on matters within the domain of State legislation nor to legislate against the wrongs and personal action of citizens within the States, nor to regulate and control the conduct of private citizens. Hence an enactment which exceeds the limits of corrective legislation and inflicts penalties for the violation of rights belonging to citizens of the State as distinguished from citizens of the United Sates is not authorized by such amendment, so far as its operation within the States is concerned.

"The amendments here under consideration do not authorize Congress to enact a statute which assures to all persons within the jurisdiction of the United States the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, theaters, and other places of public amusement, insofar at least as the operation of such a statute within the several States is concerned, and, to that extent at least, such a statute is invalid." 11 Corpus Juris, page 803, recognizes the principle annunciated throughout this memorandum.

"Under the 14th amendment the legislation must necessarily be, and can only be, corrective in its character, addressed to counteract and to afford relief against State regulations or proceedings. The same is true of the 15th amendment. The amendments do not empower Congress to legislate on matters within the domain of State legislation or to legislate against the wrongs and personal action of citizens within the States, or to regulate and control the conduct of private citizens. Hence an enactment which exceeds the limits of corrective legislation and inflicts penalties for the violation of rights belonging to citizens of the United States is unauthorized and necessarily void as to such excess, so far as its operation within the States is concerned.

Rottschaefer on Constitutional Law discusses the Federal power on enforcing the amendment as follows:

"The 5th section of the 14th amendment confers upon Congress the power to enforce its provisions by appropriate legislation. The principal method for its enforcement is the judicial review by the Supreme Court of State action alleged to conflict with its provisions.

"There remains for consideration at this point the extent of the powers possessed by Congress under the provisions of the amendment conferring upon it the power to enforce its provisions by appropriate legislation. The primary factor in defining the scope of its powers is the fact that the limitations heretofore, referred to are imposed upon the States. It may, accordingly, enact any corrective legislation that may be necessary and proper for counteracting State action which the State is prohibited by the amendment from taking or enforcing. This includes the power of punishing those who purport to exercise a State's power so as to impair or defeat rights protected by its provisions, and of removing a case from a State court in which they are being denied to a Federal court where they will be upheld. It lies within the discretion of Congress how it will compel the State and its instrumentalities to observe the rights protected by this amendment. Its power over the acts of individuals who neither act nor purport to act under authority of a State was not enlarged by the amendment, and it cannot punish them for such acts on the basis of any grant of power made by its provisions. The foregoing principles apply also to the powers conferred upon it under other amendments that merely limit action by the several States. The principal method for enforcing compliance by the States with the limitations imposed on them by these provisions of the Federal Constitution has been, and still is, judicial review of their attempts to enfore action in contravention thereof."