 Part 1 of Plessy v. Ferguson. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Kelly Robinson in Birmingham, Alabama. Plessy v. Ferguson. An opinion of the United States Supreme Court. Decided on May 18th, 1896. Please note, Part 1 is a reading of the opinion of the court only. For ease of listening, this reading omits legal citations and footnotes found within the text of the court's opinion. Mr. Justice Brown delivered the opinion of the court. This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana. Past in 1890, providing for separate railway carriages for the white and colored races. The first section of the statute enacts that all railway companies carrying passengers and their coaches in this state shall provide equal but separate accommodations for the white and colored races by providing two or more passenger coaches for each passenger train or by dividing the passenger coaches by a partition so as to secure separate accommodations provided that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats and coaches other than the ones assigned to them on account of the race they belong to. By the second section it was enacted that the officers of such passenger trains shall have power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs. Any passenger insisting on going into a coach or compartment to which by race he does not belong shall be liable to a fine of $25 or in lieu thereof to imprisonment for a period of not more than 20 days in the parish prison and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs shall be liable to a fine of $25 or in lieu thereof to imprisonment for a period of not more than 20 days in the parish prison and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway said officer shall have power to refuse to carry such passenger on his train and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of the state. The third section provides penalties for the refusal or neglect of the officers, directors, conductors and employees of railway companies to comply with the act with the proviso that nothing in this act shall be construed as applying to nurses attending children of the other race. The fourth section is immaterial. The information filed in the criminal district court charged in substance that Plessy being a passenger between two stations within the state of Louisiana was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color avert. The petition for the writ of prohibition avert that petitioner was seven eighths Caucasian and one eighth African blood that the mixture of colored blood was not discernible in him and that he was entitled to every right privilege and immunity secured to citizens of the United States of the white race and that upon such theory he took possession of a vacant seat in a coach where passengers of the white race were accommodated and was ordered by the conductor to vacate said coach and take a seat in another assigned to persons of the colored race and having refused to comply with such demand he was forcibly ejected with the aid of a police officer and imprisoned in the parish jail to answer a charge of having violated the above act. The constitutionality of this act is attacked upon the ground that it conflicts both with the 13th amendment of the Constitution abolishing slavery and the 14th amendment which prohibits certain restrictive legislation on the part of the states. Number one that it does not conflict with the 13th amendment which abolished slavery and involuntary servitude except as a punishment for crime is too clear for argument. Slavery implies involuntary servitude a state of bondage the ownership of mankind as a chattel or at least the control of the labor and services of one man for the benefit of another and the absence of a legal right to the disposal of his own person properties and services. This amendment was said in the slaughterhouse cases to have been intended primarily to abolish slavery as it had been previously known in this country and that it equally forbade Mexican peonage or the Chinese Cooley trade when they amounted to slavery or involuntary servitude and that the use of the word servitude was intended to prohibit the use of all forms of involuntary slavery of whatever class or name. It was intimated however in that case that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the southern states imposing upon the colored race onerous disabilities and burdens and curtailing their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value and that the 14th amendment was devised to meet this exigency. So too, in the civil rights cases, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant but only as involving an ordinary civil injury, properly cognizable by the laws of the state and presumably subject to redress by those laws until the contrary appears. It would be running the slavery question into the ground said Mr. Justice Bradley to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain or as to the people he will take into his coach or cab or car or admit to his concert or theater or deal with in other matters of intercourse or business. A statute which implies merely a legal distinction between the white and colored races, a distinction which is founded in the color of the two races in which must always exist so long as white men are distinguished from the other race by color has no tendency to destroy the legal equality of the two races or re-establish a state of involuntary servitude. Indeed, we do not understand the 13th amendment is strenuously relied upon by the plaintiff an error in this connection. Number two, by the 14th amendment, all persons born or naturalized in the United States and subject to the jurisdiction thereof are made citizens of the United States and of the state wherein they reside. And the states are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States or shall deprive any person of life, liberty or property without due process of law or deny to any person within their jurisdiction the equal protection of the laws. The proper construction of this amendment was first called to the attention of this court in the Slaughterhouse cases which involved, however, not a question of race but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race but it was said generally that its main purpose was to establish the citizenship of the Negro to give definitions of citizenship of the United States and of the states and to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States as distinguished from those of citizens of the states. The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law but in the nature of things it could not have been intended to abolish distinctions based upon color or to enforce social as distinguished from political equality or a commingling of the two races upon terms unsatisfactory to either. Laws permitting and even requiring their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other and have been generally if not universally recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced. One of the earliest of these cases is that of Roberts v. City of Boston which the Supreme Judicial Court of Massachusetts held that the General School Committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them and to prohibit their attendance upon the other schools. The great principal said Chief Justice Shaw advanced by the learned and eloquent advocate for the plaintiff Mr. Charles Sumner is that by the Constitution and laws of Massachusetts all persons without distinction of age or sex, birth or color, origin or condition are equal before the law but when this great principal comes to be applied to the actual and various conditions of persons in society it will not warrant the assertion that men and women are legally clothed with the same civil and political powers that children and adults are legally to have the same functions and be subject to the same treatment but only that the rights of all as they are settled and regulated by law are equally entitled to the paternal consideration and protection of the law for their maintenance and security it was held that the powers of the committee extended to the establishment of separate schools for children of different ages, sexes and colors might also establish special schools for poor and neglected children who have become too old to attend the primary school and yet have not acquired the rudiments of learning to enable them to enter the ordinary schools similar laws have been enacted by Congress under its general power of legislation over the District of Columbia as well as by the legislatures of many of the states and have been generally if not uniformly sustained by the courts laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract and yet have been universally recognized as within the police power of the state the distinction between laws interfering with the political equality of the Negro and those requiring the separation of the two races in schools, theaters and railway carriages has been frequently drawn by this court thus in Strouder v. West Virginia it was held that a law of West Virginia limiting to white male persons 21 years of age and citizens of the state the right to sit upon juries was a discrimination which implied a legal inferiority in civil society which lessened the security of the right of the colored race and was a step towards reducing them to a condition of servility indeed the right of a colored man that in the selection of jurors to pass upon his life, liberty and property there shall be no exclusion of his race and no discrimination against them because of color has been asserted in a number of cases so where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of color we have held that this meant that persons of color should travel in the same car as white ones and that the enactment was not satisfied by the company providing cars assigned exclusively to people of color though they were as good as those which they assigned exclusively to white persons upon the other hand where a statute of Louisiana required those engaged in the transportation of passengers among the states if to all persons traveling within that state upon vessels employed in that business equal rights and privileges in all parts of the vessel without distinction on account of race or color and subjected to an action for damages the owner of such a vessel who excluded colored persons on account of their color from the cabin set aside by him for the use of whites it was held to be so far as it applied to interstate commerce unconstitutional and void the court in this case however expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce or affecting anything else than commerce among the states in the civil rights cases it was held that an act of congress entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations advantages facilities and privileges of ends public conveyances on land or water theaters and other places of public amusement and made applicable to citizens of every race and color regardless of any previous condition of servitude was unconstitutional and void upon the ground that the 14th amendment was prohibitory upon the states only and the legislation authorized to be adopted by congress for enforcing it was not direct legislation on matters respecting which the states were prohibited from making or enforcing certain laws or doing certain acts but was corrective legislation such as might be necessary or proper for counteracting and redressing the effect of such laws or acts in delivering the opinion of the court Mr. Justice Bradley observed that the 14th amendment does not invest congress with power to legislate upon subjects that are within the domain of state legislation but to provide modes of relief against state legislation or state action of the kind referred to it does not authorize congress to create a code of municipal law for the regulation of private rights but to provide modes of redress against the operation of state laws and the action of state officers executive or judicial when these are subversive of the fundamental rights specified in the amendment positive rights and privileges are undoubtedly secured by the 14th amendment but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges and by power given to congress to legislate for the purpose of carrying such prohibition into effect and such legislation must necessarily be predicated upon such supposed state laws or state proceedings and be directed to the correction of their operation in effect much nearer and indeed almost directly in point is the case of the Louisville NONT railway company versus state wherein the railway company was indicted for a violation of a statute of Mississippi and that all railroads carrying passengers should provide equal but separate accommodations for the white and colored races by providing two or more passenger cars for each passenger train or by dividing the passenger cars by a partition so as to secure separate accommodations the case was presented in a different aspect from the one under consideration in as much as it was an indictment against the railway company for failing to provide the separate accommodations but the question considered was the constitutionality of the law in that case the supreme court of Mississippi had held that the statute applied solely to commerce within the state and that being the construction of the state statute by its highest court was accepted as conclusive if it be a matter said the court respecting commerce wholly within a state and not interfering with commerce between the states then obviously there is no violation of the commerce clause of the federal constitution no question arises under this section as to the power of the state to separate in different compartments interstate passengers or affect in any manner the privileges and rights of such passengers all that we can consider is whether the state has the power to require that railroad trains within her limits shall have separate accommodations for the two races that affecting only commerce within the state is no invasion of the power given to congress by the commerce clause a like course of reasoning applies to the case under consideration since the supreme court of Louisiana in the case of state versus judge held that the statute in question did not apply to interstate passengers but was confined in its application to passengers traveling exclusively within the borders of the state the case was decided largely upon the authority of Louisville and ONT railway company versus state and affirmed by this court in the present case no question of interference with interstate commerce can possibly arise since the east Louisiana railway appears to have been purely a local line with both its termini within the state of Louisiana similar statutes for the separation of the two races upon public conveyances were held to be constitutional in railroad versus miles day versus Owen railway company versus Williams railroad company versus Wells railroad company versus Benson the Sioux logwood versus railroad company McGuinn versus Forbes people versus king versus railway company heard versus railroad company while we think the enforced separation of the races as applied to the internal commerce of the state neither abridges the privileges or immunities of the colored man deprived some of his property without due process of law nor denies him the equal protection of the laws within the meaning of the 14th amendment we are not prepared to say that the conductor in assigning passengers to the coaches according to their race does not act at his peril or that the provision of the second section of the act that denies to the passenger compensation and damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power indeed we understand it to be conceded by the state's attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional the power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs as well as the power to determine who under the laws of the particular state is to be deemed a white and who a colored person this question though indicated in the brief of the plaintiff and error does not properly arise upon the record in this case since the only issue made is as to the unconstitutionality of the act so far as it requires the railway to provide separate accommodations and the conductor to assign passengers according to their race it is claimed by the plaintiff and error that in any mixed community the reputation of belonging to the dominant race in this instance the white race is property in the same sense that a right of action or of inheritance is property conceding this to be so for the purposes of this case we are unable to see how this statute deprives him of or in any way affects his right to such property if he be a white man and assigned to a colored coach he may have his action for damages against the company for being deprived of his so-called property upon the other hand if he be a colored man and be so assigned he has been deprived of no property since he is not lawfully entitled to the reputation of being a white man in this connection it is also suggested by the learned counsel for the plaintiff and error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color or who are aliens or who belong to certain nationalities or to enact laws requiring colored people to walk upon one side of the street and white people upon the other or requiring white men's houses to be painted white and colored men's black or their vehicles or business signs to be of different colors upon the theory that one side of the street is as good as the other or that a house or vehicle of one color is as good as one of another color the reply to all this is that every exercise of the police power must be reasonable and extend only to such laws as are enacted in good faith for the promotion of the public good and not for the annoyance or oppression of a particular class thus, in Yiquo vs. Hopkins it was held by this court that a municipal ordinance in San Francisco to regulate the carrying on of public laundries within the limits of the municipality violated the provisions of the Constitution of the United States if it conferred upon the municipal authorities arbitrary power at their own will and without regard to discretion in the legal sense of the term to give or withhold consent as to persons or places without regard to the competency of the persons applying for the carrying on of the business it was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race while this was the case of a municipal ordinance a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power so far then as a conflict with the 14th amendment is concerned the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation and with respect to this there must necessarily be a large discretion on the part of the legislature in determining the question of reasonableness it is at liberty to act with reference to the established usages, customs and traditions of the people and with a view to the promotion of their comfort and the preservation of the public peace in good order gauged by this standard we cannot say that a law that authorizes or even requires the separation of the two races in public conveyances is unreasonable or more obnoxious to the 14th amendment than the acts of congress requiring separate schools for colored children in the District of Columbia the constitutionality of which does not seem to have been questioned or the corresponding acts of state legislatures we consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with the badge of inferiority if this be so it is not by reason of anything found in the act but solely because the colored race chooses to put that construction upon it the argument necessarily assumes that if as has been more than once the case and is not unlikely to be so again the colored race should become the dominant power in the state legislature and should enact a law in precisely similar terms it would thereby regulate the white race to an inferior position we imagine that the white race at least would not acquiesce in this assumption the argument also assumes that social prejudices may be overcome by legislation and that equal rights cannot be secured to the negro except by an enforced commingling of the two races we cannot accept this proposition if the two races are to meet upon terms of social equality it must be the result of natural affinities a mutual appreciation of each other's merits and a voluntary consent of individuals as was said by the court of appeals of New York in people versus Gallagher this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate when the government therefore has secured to each of its citizens equal rights before the law and equal opportunities for improvement in progress it has accomplished the end for which it was organized and performed all the functions respecting social advantages with which it is endowed legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences and the attempt to do so can only result in accentuating the difficulties of the present situation if the civil and political rights of both races be equal cannot be inferior to the other civilly or politically if one race be inferior to the other socially the constitution of the United States cannot put them upon the same plane it is true that the question of the proportion of colored blood necessary to constitute a colored person as distinguished from a white person is one upon which there is a difference of opinion in the different states some holding that any visible a mixture of black blood that person is belonging to the colored race others that it depends upon the preponderance of blood and still others that the predominance of white blood must only be in the proportion of 3 fourths but these are questions to be determined under the laws of each state and are not properly put in issue in this case under the allegations of his petition it may undoubtedly become a question of importance whether under the laws of Louisiana he belongs to the white or colored race the judgment of the court below is therefore affirmed end of part one part two of Plessy versus Ferguson this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Kelly Robinson from Alabama Plessy versus Ferguson an opinion of the United States Supreme Court decided on May 18th 1896 please note part two is a reading of Justice Harlan's dissent for ease of listening this reading omits legal citations and footnotes found within the text of the opinion Mr. Justice Harlan dissenting by the Louisiana statute the validity of which is here involved all railway companies other than street railroad companies carrying passengers in that state are required to have separate but equal accommodations for white and colored persons by providing two or more passenger coaches for each passenger train or by dividing the passenger coaches by a partition so as to secure separate accommodations under this statute no colored person is permitted to occupy a seat and a coach assigned to white persons nor any white person to occupy a seat and a coach assigned to colored persons the managers of the railroad are not allowed to exercise any discretion in the premises but are required to assign each passenger to some coach or compartment set apart for the exclusive use of his race if a passenger insists upon going into a coach or compartment not set apart for persons of his race to be fined or to be imprisoned in the parish jail penalties are prescribed for the refusal or neglect of the officers, directors conductors and employees of railroad companies to comply with the provisions of the act only nurses attending children of the other race are accepted from the operation of the statute no exception is made of colored attendants traveling with adults a white man is not permitted to have his colored servant with him even if his condition of health requires the constant personal assistance of such servant if a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve and who may need her personal attention while traveling she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty while there may be in Louisiana persons of different races who are not citizens of the United States the words in the act white and colored races necessarily include all citizens of the United States of both races residing in that state so that we have before us a state enactment that compels under penalties the separation of the two races in railroad passenger coaches and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race thus the state regulates the use of public highway by citizens of the United States solely upon the basis of race however apparent the injustice of such legislation may be we have only to consider whether it is consistent with the constitution of the United States that a railroad is a public highway and that the corporation which owns operates it is in the exercise of public functions is not at this day to be disputed Mr. Justice Nelson speaking for this court in New Jersey steam navigation company versus merchants bank said that a common carrier was in the exercise of a sort of public office and has public duties to perform from which he should not be permitted to exonerate himself without the assent of the party's concerned Mr. Justice Strong delivering the judgment of this court in all caught versus supervisors said that railroads though constructed by private corporations and owned by them are public highways has been the doctrine of nearly all the courts ever since such conveyances for passage and transportation have had any existence very early the question arose whether a state's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad clearly it could not unless taking land for such a purpose by such an agency is taking land for public use the right of eminent domain nowhere justifies taking property for a private use yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road making compensation to the owner what else does this doctrine mean if not that building a railroad though it be built by a private corporation is an act done for a public use so in township of pine grove versus talcott though the corporation a railroad company was private its work was public as much so as if it were to be constructed by the state so in inhabitants of Worcester versus western railroad corporation the establishment of that great thoroughfare is regarded as a public work established by public authority intended for the public use and benefit the use of which is secured to the whole community and constitutes therefore like a canal turnpike or highway a public easement it is true that the real and personal property necessary to the establishment and management of the railroad is vested in the corporation but it is in trust for the public in respect of civil rights common to all citizens the constitution of the united states does not I think permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights every true man has pride of race and under appropriate circumstances when the rights of others his equals before the law are not to be affected it is his privilege to express such pride and to take such action based upon it as to him seems proper but I deny that any legislative body or judicial tribunal may have to the race of citizens when the civil rights of those citizens are involved indeed such legislation is that here in question is inconsistent not only with that equality of rights which pertains to citizenship national and state but with the personal liberty enjoyed by everyone within the united states 13th amendment does not permit the withholding or the deprivation of any right necessarily in hearing and freedom it not only struck down the institution of slavery as previously existing in the united states but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude it decreed universal civil freedom in this country this court has so a judged but that amendment having been found inadequate to the protection of the rights of those who had been in slavery it was followed by the 14th amendment which added greatly to the dignity and glory of American citizenship and to the security of personal liberty by declaring that all persons born or naturalized in the united states and subject to the jurisdiction thereof are citizens of the united states and of the state wherein they reside and 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 these two amendments if enforced according to their true intent and meaning will protect all the civil rights that pertain to freedom and citizenship finally and to the end that no citizen should be denied on account of his race the privilege of participating in the political control of his country it was declared by the 15th amendment that the right of citizens of the united states to vote shall not be denied or abridged by the united states or by any state on account of race color or previous condition of servitude these notable additions to the fundamental law were welcomed by the friends of liberty throughout the world they removed the race line from our governmental systems they had as this court has said a common purpose namely to secure to a race recently emancipated a race that through many generations have been held in slavery all the civil rights that the superior race enjoy they declared in legal effect this court has further said that the law in the states shall be the same for the black as for the white shall stand equal before the laws of the states and in regard to the colored race for whose protection the amendment was primarily designated that no discrimination shall be made against them by law because of their color we also said the words of the amendment it is true are prohibitory but they contain a necessary implication of a positive immunity or right most valuable to the colored race the right to exemption from unfriendly legislation against them distinctly as colored exemption from legal discriminations implying inferiority in civil society lessening the security of their enjoyment of the rights which others enjoy and discriminations which are steps towards reducing them to the condition of a subject race it was consequently a judge that a state law that excluded citizens of the colored race from juries because of their race however well qualified in other respects to discharge the duties of jury men was repugnant to the 14th amendment at the present term referring to the previous adjudications this court declared that underlying all of those decisions is the principle that the constitution of the United States in its present form forbids so far as civil rights are concerned discrimination by the general government or the states against any citizen because of his race all citizens are equal before the law the decisions referred to show the scope of the recent amendments of the constitution they also show that it is not within the power of a state to prohibit colored persons because of their race from participating as jurors in the administration of justice there is an argument that the statute of Louisiana does not discriminate against either race but prescribes a rule applicable alike to white and colored citizens but this argument does not meet the difficulty everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied assigned to white persons railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers the thing to accomplish was under the guise of giving equal accommodation for whites and blacks to compel the latter to keep to themselves while traveling in railroad passenger coaches no one would be so wanting and candor as to assert the contrary the fundamental objection therefore the statute is that it interferes with the personal freedom of citizens personal liberty it has been well said consists in the power of locomotion of changing situation or removing one's person to whatsoever places one's own inclination may direct without imprisonment or restraint unless by due course of law if a white man and a black man choose to occupy the same public conveyance on a public highway it is their right to do so and no government proceeding alone on grounds of race can prevent it without infringing the personal liberty of each it is one thing for railroad carriers to furnish or to be required by law to furnish equal accommodations for all whom they are under a legal duty to carry it is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance to furnish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach if a state can prescribe as a rule of civil conduct that whites and blacks shall not travel as passengers in the same railroad coach why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of the street and black citizens to keep on the other why may it not upon light grounds to furnish whites and blacks who ride together in streetcars or in open vehicles on a public road or street why may it not require sheriffs to assign whites to one side of a courtroom and blacks to the other and why may it not also prohibit the co-mingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day further, if this statute of Louisiana is consistent with the personal liberty of citizens why may not the state require the separation and railroad coaches of native and naturalized citizens of the United States or of Protestants and Roman Catholics the answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable and could not therefore stand before the law is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts a reasonable one taking all the circumstances into consideration a statute may be unreasonable merely because a sound public policy forbade its enactment but I do not understand that the courts have anything to do with the policy or expediency of legislation a statute may be valid yet upon grounds of public policy may well be characterized as unreasonable Mr. Sedgwick correctly states the rule when he says that the legislative intention being clearly ascertained the courts have no other duty to perform than to execute the legislative will without any regard to their views as to the wisdom or justice of the particular enactment there is a dangerous tendency in these latter days to enlarge the functions of the courts by means of judicial interference with the will of the people as expressed by the legislature our institutions have the distinguishing characteristic that the three departments of government are coordinate and separate each must keep within the limits defined by the constitution and the courts best discharge their duty by executing the will of the law making power constitutionally expressed by the results of legislation to be dealt with by the people through their representatives statutes must always have a reasonable construction sometimes they are to be construed strictly sometimes literally in order to carry out the legislative will but however construed the intent of the legislature is to be respected if the particular statute in question is valid although the courts looking at the public interests may conceive the statute to be both unreasonable and impolitic if the power exists to enact a statute that ends the matter so far as the courts are concerned the adjudged cases in which statutes have been held to be void because unreasonable are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent the white race deems itself to be the dominant race in this country and so it is in prestige and achievements and education and wealth and empower so I doubt not it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty but in view of the constitution in the eye of the law there is in this country no superior, dominant ruling class of citizens there is no caste here our constitution is color blind and neither knows nor tolerates classes among citizens in respect of civil rights all citizens are equal before the law the humblest is the peer of the most powerful the law regards man as man and takes no account of his surroundings or of his color when his civil rights is guaranteed by the supreme law of the land are involved it is therefore to be regretted that this high tribunal the final expositor of the fundamental law of the land has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race in my opinion the judgment this day rendered will and time proved to be quite as pernicious as the decision made by this tribunal in the dreadscot case it was a judged in that case that the descendants of Africans who were imported into this country and sold to slaves were not included nor intended to be included under the word citizens in the constitution and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the united states that at the time of the adoption of the constitution they were considered as a subordinate and inferior class of beings who had been subjugated by the dominant race and whether emancipated or not yet remained subject to their authority and had no rights or privileges but such as those who held the power and the government might choose to grant them the recent amendments of the constitution it was supposed had eradicated these principles from our institutions but it seems that we have yet in some of the states a dominant race a superior class of citizens which assumes to regulate the enjoyment of civil rights common to all citizens upon the basis of race the present decision may well be apprehended will not only stimulate aggressions more or less brutal and irritating upon the admitted rights of colored citizens but will encourage the belief that it is possible by means of state enactments to defeat the beneficent purposes which the people of the united states had in view when they adopted the recent amendments of the constitution in which the blacks of this country were made citizens of the united states and of the states in which they respectfully reside and whose privileges and immunities as citizens the states are forbidden to abridge 60 millions of whites are in no danger from the presence here of 8 millions of blacks the destinies of the two races in this country are indissolubly linked together and the interests of both require common government of all shall not permit the seeds of race hate to be planted under the sanction of law what can more certainly arouse race hate what more certainly create and perpetuate a feeling of distrust between these races than state enactments which in fact proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens that as all will admit is the real meaning of such legislation as was enacted in Louisiana the sure guarantee of the peace and security of each race is the clear distinct unconditional recognition by our governments national and state of every right that inheres in civil freedom and of the equality before the law of all citizens of the united states without regard to race state enactments regulating the enjoyment of civil rights upon the basis of race and cunningly devised to defeat legitimate results of the war under the pretense of recognizing equality of rights can have no other result than to render permanent peace impossible and to keep alive a conflict of races the continuance of which must do harm to all concerned not met by the suggestion that social equality cannot exist between the white and black races in this country that argument, if it can be properly regarded as one is scarcely worthy of consideration for social equality no more exists between two races when traveling in a passenger coach or a public highway then when members of the same races sit by each other in a streetcar or in the jury box or stand or sit with each other in a political assembly or when they use in common the streets of a city or town or when they are in the same room for the purpose of having their names placed on the registry of voters or when they approach the ballot box in order to exercise the high privilege of voting. There is a race so different from our own that we do not permit those belonging to it to become citizens of the united states persons belonging to it are, with few exceptions absolutely excluded from our country. I allude to the Chinese race but by the statute in question a Chinaman can ride in the same passenger coach with white citizens of the united states while citizens of the black race in Louisiana many of whom perhaps risk their lives for the preservation of the union who are entitled by law to participate in the political control of the state and nation who are not excluded by law or by reason of their race from public stations of any kind who have all the legal rights that belong to white citizens are yet declared to be criminals liable to imprisonment if they ride in a public coach occupied by citizens of the white race it is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race he does not object nor perhaps would he object to separate coaches for his race if his rights under the law were recognized but he does object not never to see subjecting that citizens of the white and black races can be a judged criminals because they sit or claim the right to sit in the same public coach on a public highway the arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution it cannot be justified upon any legal grounds if evils will result from the commingling of the two races upon public highways established for the benefit of all they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race we boast of the freedom enjoyed by our people above all other peoples but it is difficult to reconcile that boast the state of the law which practically puts the brand of servitude and degradation upon a large class of our fellow citizens our equals before the law the thin disguise of equal accommodations for passengers and railroad coaches will not mislead anyone nor atone for the wrong this day done the result of the whole matter is that while this court has frequently a judged term has recognized the doctrine that a state cannot consistently with the constitution of the United States prevent white and black citizens having the required qualifications for jury service from sitting in the same jury box it is now solemnly held that a state may prohibit white and black citizens from sitting in the same passenger coach on a public highway or may require separated by a partition when in the same passenger coach may it not now be reasonably expected that astute men of the dominant race who affect to be disturbed at the possibility that the integrity of the white race may be corrupted or that its supremacy will be imperiled by contact on public highways with black people will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a partition and that upon retiring from the courtroom to consult as to their verdict such partition if it be a movable one shall be taken to their consultation room and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race if the partition used in the courtroom happens to be stationary provision could be made for screens with openings through which jurors of the two races could confer as to their verdict without coming into personal contact with each other I cannot see but that according to the principles this day announced such state legislation although conceived in hostility to and enacted for the purpose of humiliating citizens of the united states of a particular race would be held to be consistent with the constitution necessary to review the decisions of state courts to which reference was made in argument some and the most important of them are wholly in applicable because rendered prior to the adoption of the last amendments of the constitution when colored people had very few rights which the dominant race felt obliged to respect others were made at a time when public opinion in many localities was dominated by the institution of slavery when it would not have been safe to do justice to the black man and when so far as the rights of blacks were concerned race prejudice was practically the supreme law of the land those decisions cannot be guides in the era introduced by the recent amendments of the supreme law which established universal civil freedom gave citizenship to all born or naturalized in the united states and residing here obliterated the race line from our systems of governments national and state and placed our free institutions upon the broad and sure foundation of the equality of all men before the law I am of opinion the state of Louisiana is inconsistent with the personal liberty of citizens white and black in that state and hostile to both the spirit and letter of the constitution of the united states if laws of like character should be enacted in the several states of the union the effect would be in the highest degree mischievous slavery as an institution tolerated by law would it is true have disappeared from our country but there would remain a power in the states by sinister legislation to interfere with the full enjoyment of the blessings of freedom to regulate civil rights common to all citizens upon the basis of our race and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the people of the united states for whom and by whom through representatives our government is administered such a system is inconsistent with the guarantee given by the constitution to each state of a republican form and may be stricken down by congressional action or by the courts in the discharge of their solemn duty to maintain the supreme law of the land anything in the constitution or laws of any state to the contrary not withstanding for the reason stated I am constrained to withhold my assent from the opinion and judgment of the majority end of part two end of Plessy versus Ferguson an opinion of the united states supreme court Missouri ex relationi gains versus canada this is a libervox recording all libervox recordings are in the public domain for more information or to volunteer please visit libervox.org recording by Kelly Robinson in Birmingham, Alabama Missouri ex relationi gains versus canada an opinion of the united states supreme court decided on December 12th 1938 please note this is a reading of the opinion of the court only this reading does not include the syllabus or the separate opinion for ease of listening this reading omits legal citations found within the text of the court's opinion and footnotes Mr. Chief Justice Hughes delivered the opinion of the court petitioner Lloyd Gaines a negro was refused admission to the school of law of the state university of Missouri asserting that this refusal constituted a denial by the state of the equal protection of the laws in violation of the 14th amendment of the federal constitution petitioner brought this action for mandamus to compel the curators of the university to admit him on final hearing an alternative writ was quashed and a peremptory writ was denied by the circuit court the supreme court of the state affirmed the judgment we granted certiorari the citizen of Missouri in august 1935 he was graduated with the degree of bachelor of arts at the Lincoln university an institution maintained by the state of Missouri for the higher education of negroes that university has no law school upon the filing of his application for admission to the law school of the university of Missouri the registrar advised him to communicate with the president of Lincoln university and the latter directed petitioner's attention to section 9622 of the revised statutes of Missouri providing as follows section 9622 may arrange for attendance at university of any adjacent state tuition fees pending the full development of the Lincoln university the board of curators shall have the authority to arrange for the attendance of negro residents of the state of Missouri at the university of any adjacent state to take any course or to study any subjects provided for at the state university of Missouri in which are not taught at the Lincoln university and to pay the reasonable tuition fees for such attendance provided that whenever the board of curators deem it advisable they shall have the power to open any necessary school or department petitioner was advised to apply to the state superintendent of schools for aid under that statute it was admitted on the trial that petitioners work and credits at the Lincoln university would qualify him for admission to the school of law of the university of Missouri if he were found otherwise eligible he was refused admission upon the ground that it was contrary to the constitution laws and public policy of the state to admit a negro as a student in the university of Missouri it appears that there are schools of law in connection with the state universities of four adjacent states Kansas Nebraska Iowa and Illinois where non resident negro are admitted the clear indefinite conclusions of the state court in construing the pertinent state legislation narrow the issue the action of the curators who are representatives of the state in the management of the state university must be regarded as state action the state constitution provides that separate free public schools shall be established for the education of children of African descent and by statute separate high school facilities are supplied for colored students equal to those provided for white students while there is no express constitutional provision requiring that the white and negro races be separated for the purpose of higher education the state court on a comprehensive review of the state statutes held that it was intended to separate the white and negro races for that purpose also referring in particular to Lincoln university the court deemed it to be clear that the legislature intended to bring the Lincoln university up to the standard of the university of Missouri and give to the whites and negroes an equal opportunity for higher education the whites at the university of Missouri and the negroes at Lincoln university further the court concluded that the provisions of section 9622 above quoted to the effect that negro residents may attend the university of any adjacent state with their tuition paid pending the full development of Lincoln university made it evident that the legislature did not intend that negroes and whites should attend the same university in the state in that view it necessarily followed the curators of the university of Missouri acted in accordance with the policy of the state in denying petitioner admission to its school of law upon the sole ground of his race in answering petitioners contention that this discrimination constituted a denial of his constitutional right the state court has fully recognized the obligation of the state to provide negroes with advantages for higher education substantially equal to the advantages afforded to white students the state has sought to fulfill that obligation by furnishing equal facilities in separate schools a method the validity of which has been sustained by our decisions respondents council have appropriately emphasized the special solicitude of the state for the higher education of negroes as shown in the establishment of Lincoln university a state institution well conducted on a plane with the University of Missouri so far as the offered courses are concerned it is said that Missouri is a pioneer in that field and is the only state in the union which has established a separate university for negroes on the same basis as the state university for white students but commendable as is that action the fact remains that instruction in law for negroes is not now afforded by the state either at Lincoln university or elsewhere within the state and that the state excludes negroes from the advantages of the law school it has established at the University of Missouri it is manifest this discrimination if not relieved by the provisions we shall presently discuss would constitute a denial of equal protection that was the conclusion of the court of appeals of Maryland in circumstances substantially similar in that aspect if there appeared that the state of Maryland had undertaken the function of education in the law but had omitted students of one race from the only adequate provision made for it and omitted them solely because of their color that if those students were to be offered equal treatment in the performance of the function they must at present be admitted to the one school provided a provision for scholarships to enable negroes to attend colleges outside the state mainly for the purpose of professional studies was found to be inadequate and the question whether with aid in any amount it is sufficient to send the negroes outside the state for legal education the court of appeals found it unnecessary to discuss accordingly a writ of mandamus to admit the applicant was issued to the officers and regents of the university of Maryland as the agents of the state entrusted with the conduct of that institution the supreme court of Missouri in the instant case has distinguished the decision in Maryland upon the grounds number one that in Missouri but not in Maryland there is a legislative declaration purpose to establish a law school for negroes at Lincoln University whenever necessary or practical and number two that pending the establishment of such a school adequate provision has been made for the legal education of negroes students in recognized schools outside of the state as to the first ground it appears that the policy of establishing a law school at Lincoln University has not yet ripened into an actual establishment and it cannot be said that a mere declaration of purpose still unfulfilled is enough the provision for legal education at Lincoln is at present entirely lacking respondents counsel urge that if on the date when petitioner applied for admission to the University of Missouri he had instead applied to the curators of Lincoln University it would have been their duty to establish a law school that this agency of the state to which he should have applied was specifically charged with the mandatory duty to furnish him what he seeks we do not read the opinion of the Supreme Court as construing the state statute to impose such a mandatory duty as the argument seems to assert the state court quoted the language of section 9618 set forth in the margin making it the mandatory duty of the board of curators to establish a law school when ever necessary and practicable in their opinion this qualification of their duty explicitly stated in the statute manifestly leaves it to the judgment of the curators to decide when it will be necessary and practicable to establish a law school and the state court so construed the statute emphasizing the discretion of the curators the court said the statute was enacted in 1921 since its enactment no Negro not even appellate has applied to Lincoln University for a law education this fact demonstrates the wisdom of the legislature and leaving it to the judgment of the board of curators to determine when it would be necessary or practicable to establish a law school for Negroes at Lincoln University pending that time adequate provision is made for the legal education of Negroes in the University of some adjacent state as here too fore pointed out the state court has not held that it would have been the duty of the curators to establish a law school at Lincoln University for the petitioner on his application their duty as the court defined it would have been either to supply a law school at Lincoln University as provided in section 9618 or to furnish him the opportunity to obtain his legal training in another state as provided in section 9622 thus the law left the curators free to adopt the latter course the state court has not ruled or intimated that their failure or refusal to establish a law school for a very few students still less for one student would have been an abuse of the discretion with which the curators were entrusted and apparently it was because of that discretion and of the postponement which its exercise in accordance with the terms of the statute would entail until necessity and practicability appeared that the state court considered and upheld as adequate the provision for the legal education of Negroes who were citizens of Missouri in the University of adjacent states we may put on one side respondents contention that there were funds available at Lincoln University for the creation of a law department and the suggestions with respect to the number of instructors who would be needed for that purpose and the cost of supplying them the president of Lincoln University did not advert to the existence or prospective use of funds for that purpose when he advised petitioner to apply to the state superintendent of schools for aid under section 9622 at best, the evidence to which argument as to available funds is addressed admits of conflicting inferences and the decision of the state court did not hinge on any such matter in the light of its ruling we must regard the question whether the provision of legal education in other states of Negroes resident in Missouri is sufficient to satisfy the constitutional requirement of equal protection as the pivot upon which this case turns the state court stresses the advantages that are afforded by the law schools of the adjacent states Kansas, Nebraska, Iowa and Illinois which admit non-resident Negroes the court considered that these were schools of high standing and desiring to practice law in Missouri can get as sound comprehensive, valuable legal education as in the University of Missouri that the system of education in the former is the same as that in the latter and is designed to give the students a basis for the practice of law in any state where the Anglo-American system of law obtains that the law school of the University of Missouri does not specialize in Missouri law and that the course and the case books used in the five schools are substantially identical petitioner insists that for one intending to practice in Missouri there are special advantages in attending a law school there both in relation to the opportunities for the particular study of Missouri law and for the observation of the local courts and also in view of the prestige of the Missouri law school among the citizens of the state his prospective clients proceeding with its examination of relative advantages the state court found the difference in distances to be traveled afforded no substantial ground of complaint and that there was an adequate appropriation to meet the full tuition fees which petitioner would have to peg we think that these matters are beside the point the basic consideration is not as to what sort of opportunities other states provide or whether they are as good as those in Missouri but as to what opportunities Missouri itself furnishes to white students and denies to Negroes solely upon the ground of color the admissibility of laws separating the races in the enjoyment of privileges afforded by the state rests solely upon the equality of the privileges which the laws give to the separated groups within the state the question here is not of a duty of the state to supply legal training or of the quality of the training which it does supply but of its duty it provides such training to furnish it to the residents of the state upon the basis of an equality of right by the operation of the laws of Missouri a privilege has been created for white law students which is denied to Negroes by reason of their race the white resident is afforded legal education within the state the Negro resident having the same qualifications is refused it there must go outside the state to obtain it that is a denial of the equality of legal right to the enjoyment of the privilege which the state has set up and the provision for the payment of tuition fees in another state does not remove the discrimination the equal protection of the laws is a pledge of the protection of equal laws manifestly the obligation of the state to give the protection of equal laws can be performed only where its laws operate that is within its own jurisdiction it is there that the equality of legal right must be maintained that obligation is imposed by the constitution upon the states severally as governmental entities each responsible for its own laws establishing the rights and duties of persons within its borders it is an obligation the burden of which cannot be cast by one state upon another and no state can be excused from performance by what another state may do or fail to do that separate responsibility of each state within its own sphere is of the essence of statehood maintained under our dual system it seems to be implicit in respondents argument that if other states did not provide courses for legal education it would nevertheless be the constitutional duty of Missouri when it supplied such courses for white students to make equivalent provision for negroes but that plain duty would exist because it rested upon the state independently of the action of other states we find it impossible to conclude that what otherwise would be an unconstitutional discrimination with respect to the legal right to the enjoyment of opportunities within the state can be justified by requiring resort to opportunities elsewhere that resort may mitigate the inconvenience of the discrimination but cannot serve to validate it nor can we regard the fact that there is but a limited demand in Missouri for the legal education of negroes as excusing the discrimination in favor of whites we had occasion to consider a cognate question in the case of McCabe versus Atchison Topeka and Santa Fe Railway company there the argument was advanced in relation to the provision by a carrier of sleeping cars dining and chair cars that the limited demand by negroes justified the state in permitting the furnishing of such accommodations exclusively for white persons we found that argument to be without merit it made we said the constitutional right depend upon the number of persons who may be discriminated against whereas the essence of the constitutional right is that it is a personal one whether or not particular facility shall be provided may doubtless be conditioned upon there being a reasonable demand therefore but if facilities are provided substantial equality of treatment of persons traveling under light conditions cannot be refused it is the individual who is entitled to the equal protection of the laws and if he is denied by a common carrier acting in the matter under the authority of a state law a facility or convenience in the course of his journey which under substantially the same circumstances is furnished to another traveler he may properly complain that his constitutional privilege has been invaded here petitioners right was a personal one it was as an individual that he was entitled to the equal protection of the laws and the state was bound to furnish him within its borders facilities for legal education substantially equal to those which the state there offered for persons of the white race whether or not other negroes sought the same opportunity it is urged however that the provision for tuition outside the state is a temporary one that it is intended to operate merely pending the establishment of a law department for negroes at Lincoln University while in that sense the discrimination may be termed temporary it may nevertheless continue for an indefinite period by reason of the discretion given to the curators of Lincoln University and the alternative of arranging for tuition in other states as permitted by the state law as construed by the state court so long as the curators find it unnecessary and impracticable to provide facilities for the legal instruction of negroes within the state in that view we cannot regard the discrimination as excused by what is called its temporary character we do not find that the decision of the state court turns on any procedural question the action was for mandamus but it does not appear that the remedy would have been deemed inappropriate if the asserted federal right had been sustained in that situation the remedy by mandamus was found to be a proper one in University of Maryland versus Murray in the instant case the state court did note that petitioner had not applied to the management of Lincoln University for legal training but as we have said the state court did not rule that it would have been the duty of the curators to grant such an application but on the contrary took the view as we understand it that the curators were entitled under the state law to refuse such an application and in its stead to provide for petitioners tuition in an adjacent state that conclusion presented the federal question as to the constitutional adequacy of such a provision while equal opportunity for legal training within the state was not furnished and this federal question the state court entertained passed upon we must conclude that in so doing the court denied the federal right which petitioner set up and the question as to the correctness of that decision is before us we are of the opinion that the ruling was error and the petitioner was entitled to be admitted to the law school of the state university in the absence of other and proper provision for his legal training within the state the judgment of the supreme court that Missouri is reversed and the cause is remanded for further proceedings not inconsistent with this opinion it is so ordered reversed and remanded end of Missouri ex-relatione gains versus canada an opinion of the united states supreme court lane versus wilson this is a liber vox recording all liber vox recordings are in the public domain for more information or to volunteer please visit liber vox.org recording by kelly robinson in birmingham alabama lane versus wilson an opinion of the united states supreme court decided on may 22nd 1939 please note this is a reading of the opinion of the court only for ease of listening this reading omits legal citations found within the text of the court's opinion and footnotes mr. justice frankfurter delivered the opinion of the court the case is here on certiorary to review the judgment of the circuit court of appeals for the 10th circuit affirming that of the united states district court for the eastern district of oklahoma entered upon a directed verdict in favor of the defendants the action was won for five thousand dollars damages brought under section 1979 of the revised statutes by a colored citizen claiming discriminatory treatment resulting from electoral legislation of oklahoma in violation of the 15th amendment certiorary was granted because of the importance of the question and an asserted conflict with the decision in guin versus united states the constitution under which oklahoma was admitted into the union regulated the suffrage by article 3 whereby its qualified electors were to be citizens of the state who are over the age of 21 years with disqualifications in the case of felons poppers and lunatics soon after its admission the suffrage provisions of the oklahoma constitution were radically amended by the addition of a literacy test from which white voters were in effect relieved through the operation of a grandfather clause the clause was stricken down by this court as violative of the prohibition against discrimination on account of race, color or previous condition of servitude of the 15th amendment this outlawry occurred on June 21, 1915 in the meantime the oklahoma general election of 1914 had been based on the offending grandfather clause after the invalidation of that clause a special session of the oklahoma legislature enacted a new scheme for registration as a prerequisite to voting section 4 of this statute was obviously directed towards the consequences of the decision in guin versus united states those who had voted in the general election of 1914 automatically remained qualified voters the new registration requirements affected only others these had to apply for registration between April 30, 1916 and May 11, 1916 if qualified at that time with an extension to June 30, 1916 given only to those absent from the county during such period of time or prevented by sickness or unavoidable misfortune from registering within such time the crux of the present controversy is the validity of this registration scheme with its dividing line between white citizens who had voted under the grandfather clause immunity prior to guin versus united states and citizens who were outside it and the not more than 12 days as the normal period of registration for the there to for prescribed class the petitioner a colored citizen of Oklahoma who was the plaintiff below and will here after be referred to as such sued three county election officials for declining to register him on October 17, 1934 he was qualified for registration in 1916 but did not then get on the registration list the evidence is in conflict whether he voted himself in that year for registration and if so under what circumstances registration was denied him the fact is that plaintiff did not get on the register in 1916 under the terms of the statute he thereby permanently lost the right to register and hence the right to vote the central claim of plaintiff is that of the unconstitutionality of section 5654 the defendants joined issue on this claim and further insisted that if there had been illegality in a denial of the plaintiff's right to registration his proper recourse was to the courts of Oklahoma the district court took the case from the jury and its action was affirmed by the circuit court of appeals it found no proof of discrimination against Negroes in the administration of section 5654 and denied that the legislation was in conflict with the 15th amendment the defendants urged two bars to the plaintiff's recovery apart from the constitutional validity of section 5654 they say that on the plaintiff's own assumption of its invalidity there is no Oklahoma statute under which he could register and therefore no right to registration has been denied secondly they argue that the state procedure for determining claims of discrimination must be employed before invoking legal judiciary these contingents will be considered first for the disposition of a constitutional question must be reserved to the last the first objection derives from a misapplication of Giles vs. Harris in that case a bill in equity was brought by a colored man on behalf of himself and on behalf of more than 5000 Negroes citizens of the county of Montgomery Alabama similarly situated they asked the federal court to supervise the voting in that state by officers of the court what this court called a new and extraordinary situation was found strikingly to reinforce the argument that equity cannot undertake now any more than it has in the past to enforce political rights apart from this traditional restriction upon the exercise of equitable jurisdiction there was another difficulty in Giles vs. Harris the plaintiff there was in effect asking for specific performance of his right under Alabama electoral legislation this presupposed the validity of the legislation under which he was claiming but the whole theory of his bill was the invalidity of this legislation naturally enough this court took his claim at its face value and found no legislation on the basis of which specific performance could be decreed this case is very different from Giles vs. Harris the difference having been explicitly foreshadowed by Giles vs. Harris itself in that case this court declared we are not prepared to say that an action at law could not be maintained on the facts alleged in the bill that is precisely the basis of the present action brought under the following appropriate legislation of Congress to enforce the 15th amendment of the person who under color of any statute of any state subjects or causes to be subjected any citizen of the United States within the jurisdiction thereof to the deprivation of any rights privileges or immunities secured by the constitution and laws shall be liable to the party injured in an action at law the 15th amendment secures freedom from discrimination on account of race franchise who so ever under color of any statute subjects another to such discrimination thereby deprives him of what the 15th amendment secures and under section 1979 becomes liable to the party injured in an action at law the theory of the plaintiff's action is that the defendants acting under color of section 5654 did discriminate against him because that section inherently operates discriminatorily if this claim is sustained his right to sue under revised statute section 1979 follows the basis of this action is inequality of treatment though under color of law not denial of the right to vote the other preliminary objection to the maintenance of this action is likewise untenable to vindicate his present grievance the plaintiff did not have to pursue whatever remedy may have been open to him in the state courts normally the state legislative process sometimes exercise through administrative powers conferred on state courts must be completed before resort to the federal courts can be had but the state procedure open for one in the plaintiff situation section 5654 has all the indicia of a conventional judicial proceeding and does not confer upon the Oklahoma courts any of the discretionary or initiatory functions that are characteristic of administrative agencies barring only exceptional circumstances or explicit statutory requirements resort to a federal court may be had without first exhausting the judicial remedies of state courts we therefore cannot avoid passing on the merits of plaintiff's constitutional claims the reach of the 15th amendment against contrivances by a state to thwart equality in the enjoyment of the right to vote by citizens of the United States regardless of race or color has been amply expounded by prior decisions the amendment nullifies sophisticated as well as simple-minded modes of discrimination it hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race when in guin versus United States the Oklahoma grandfather clause was found violative of the 15th amendment Oklahoma was confronted with the serious task of devising a new registration system consonant with her own political ideas but also consistent with the federal constitution we are compelled to conclude however reluctantly that the legislation of 1916 partakes too much of the infirmity of the grandfather clause to be able to survive section 5652 of the Oklahoma statutes makes registration a prerequisite to voting by section 5654 and 5659 all citizens who were qualified to vote in 1916 but had not voted in 1914 were required to register save in the exceptional circumstances between April 30th and May 11th 1916 and in default of such registration were perpetually disenfranchised exemption from this onerous provision was enjoyed by all who had registered in 1914 but this registration was held under the statute which was condemned in the guin case unfair discrimination was thus retained by automatically granting voting privileges for life to the white citizens whom the constitutional grandfather clause had sheltered while subjecting colored citizens to a new burden the practical effect of the 1916 legislation was to accord to the members of the Negro race who had been discriminated against in the outlawed registration system of 1914 not more than 12 days within which to reassert constitutional rights which this court found in the guin case to have been improperly taken from them we believe that the opportunity thus given Negro voters to free themselves from the effects of discrimination to which they should never have been subjected was too cabined and confined the restrictions imposed must be judged with reference to those for whom they were designed it must be remembered that they were dealing with the body of citizens lacking the habits and traditions of political independence and otherwise living in circumstances which do not encourage initiative and enterprise to be sure in exceptional cases a supplemental period was available but the narrow basis of the supplemental registration the very brief normal period of relief for the persons and purposes in question practical difficulties of which the record in this case gives glimpses inevitable in the administration of such strict registration provisions leaves no escape from the conclusion that the means chosen as substitutes for the invalidated grandfather clause were themselves invalid under the 15th amendment they operated unfairly against the very class on whose behalf the protection of the constitution was here successfully invoked the judgment of the circuit court of appeals must therefore be reversed and the cause remanded to the district court for further proceedings in accordance with this opinion reversed and remanded and of Lane versus Wilson an opinion of the United States Supreme Court Skinner versus state of Oklahoma ex-relatione Williamson this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Kelly Robinson in Birmingham, Alabama Skinner versus state of Oklahoma ex-relatione Williamson an opinion of the United States Supreme Court decided on June 1st 1942 please note this is a reading of the opinion of the court only this reading does not include Chief Justice Stone's concurrence or Justice Jackson's concurrence for ease of listening this reading omits footnotes and legal citations found within the text of the court's opinion Mr. Justice Douglas delivered the opinion of the court this case touches a sensitive and important area of human rights Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race the right to have offspring Oklahoma has decreed the enforcement of its law against petitioner overruling his claim that it violated the 14th Amendment because that decision raised grave and substantial constitutional questions we granted the petition for certiorary the statute involved is Oklahoma's Habitual Criminal Sterilization Act that act defines a habitual criminal as a person who having been convicted two or more times for crimes amounting to felonies involving moral turpitude either in an Oklahoma court or in a court of any other state is thereafter convicted of such a felony in Oklahoma and a sentence to a term of imprisonment in an Oklahoma penal institution machinery is provided for the by the Attorney General of a proceeding against such a person in the Oklahoma courts for a judgment that such person shall be rendered sexually sterile notice an opportunity to be heard and the right to a jury trial are provided the issues triable in such a proceeding are narrow and confined if the court or jury finds that the defendant is a habitual criminal and that he may be rendered sexually sterile without detriment to his or her general health then the court shall render judgment to the effect that said defendant be rendered sexually sterile by the operation of a vasectomy in case of a male and of a self-injectomy in case of a female only one other provision of the act is material here and that is section 195 which provides that offenses arising out of the violation of the prohibitory laws revenue acts, embezzlement or political offenses shall not come or be considered within the terms of this act petitioner was convicted in 1926 of the crime of stealing chickens and was sentenced to the Oklahoma State reformatory in 1929 he was convicted of the crime of robbery with firearms and was sentenced to the reformatory in 1934 he was convicted again of robbery with firearms and was sentenced to the penitentiary he was confined there in 1935 when the act was passed in 1936 the attorney general instituted proceedings against him petitioner in his answer challenged the act is unconstitutional by reason of the 14th amendment a jury trial was had the court instructed the jury that the crimes of which petitioner had been convicted were felonies involving moral and that the only question for the jury was whether the operation of vasectomy could be performed on petitioner without detriment to his general health the jury found that it could be a judgment directing that the operation of vasectomy be performed on petitioner was affirmed by the supreme court of Oklahoma by a 5 to 4 decision several objections to the constitutionality of the act have been pressed upon us it is urged that the act cannot be sustained as an exercise of the police power in view of the state of scientific authorities respecting inheritability of criminal traits it is argued that due process is lacking because under this act unlike the act upheld in buck versus bell the defendant is given no opportunity to be heard on the issue as to whether he is the probable potential parent of socially undesirable offspring it is also suggested the act is penal in character and that the sterilization provided for is cruel and unusual punishment and violative of the 14th amendment we pass those points without animating an opinion on them for there is a feature of the act which clearly condemns it that is its failure to meet the requirements of the equal protection clause of the 14th amendment we do not stop to point out all of the inequalities in this act a few examples will suffice in Oklahoma grand larceny is a felony larceny is grand larceny when the property taken exceeds $20 in value embezzlement is punishable in the manner prescribed for feloniously stealing property of the value of that embezzled hence he who embezzles property worth more than $20 is guilty of a felony a clerk who appropriates over $20 from his employers till and a stranger who steals the same amount are thus both guilty of felonies if the latter repeats his act and is convicted three times he may be sterilized but the clerk is not subject to the pains and penalties of the act no matter how large his embezzlements, nor how frequent his convictions a person who enters a chicken coop and steals chickens commits a felony and he may be sterilized if he is thrice convicted if however he is a bailee of the property and fraudulently appropriates it he is an embezzler hence no matter how habitual his proclivities for embezzlement are and no matter how often his conviction he may not be sterilized thus the nature of the two crimes is intrinsically the same and they are punishable in the same manner furthermore the line between them follows close distinctions distinctions comparable to those highly technical ones which shape the common law as to trespass or taking there may be larceny by fraud rather than embezzlement even where the owner of the personal property delivers it to the defendant if the latter has at that time a fraudulent intention to make use of the possession as a means of converting such property to his own use and does so convert it if the fraudulent intent occurs later and the defendant converts the property he is guilty of embezzlement whether a particular act is larceny by fraud or embezzlement thus turns not on the intrinsic quality of the act but on when the felonious intent arose a question for the jury under appropriate instructions it was stated in Buck vs. Bell that the claim that state legislation violates the equal protection clause of the 14th amendment is the usual last resort of constitutional arguments under our constitutional system the states in determining the reach and scope of particular legislation need not provide abstract symmetry they may mark and set apart the classes and types of problems according to the needs and as dictated or suggested by experience it was in that connection that Mr. Justice Holmes speaking for the court in Bain Peanut Company vs. Pinson stated we must remember that the machinery of government would not work if it were not allowed a little play in its joints only recently we reaffirmed the view that the equal protection clause does not prevent the legislature from recognizing degrees of evil by our ruling in Tigner vs. Texas that the constitution does not require things which are different in fact or opinion to be treated in law as though they were the same thus if we had here only a question as to a states classification of crimes such as embezzlement or larceny no substantial federal question would be raised for a state is not constrained in the exercise of its police power to ignore experience which marks a class of offenders or a family of offenses for special treatment nor is it prevented by the equal protection clause from confining its restrictions to those classes of cases where the need is deemed to be clearest as stated in Buck vs. Bell the law does all that is needed when it does all that it can indicates a policy applies it to all within the lines and seeks to bring within the lines all similarly situated so far and so fast as its means allow but the instant legislation runs a foul of the equal protection clause though we give Oklahoma that large deference which the rule of the forgoing cases requires we are dealing here with legislation which involves one of the basic civil rights of man marriage and procreation are fundamental to the very existence and survival of the race the power to sterilize if exercised may have subtle far reaching and devastating effects in evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear there is no redemption for the individual whom the law touches the experiment which the state conducts is to his irreparable injury he is forever deprived of a basic liberty we mention these matters not to re-examine the scope of the police power of the states we advert to them merely an emphasis of our view that strict scrutiny of the classification which a state makes in a sterilization law is essential lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guarantee of just and equal laws the guarantee of equal protection of the laws is a pledge of the protection of equal laws when the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other it has made an invidious discrimination as if it had selected a particular race or nationality for oppressive treatment sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear pointed unmistakable discrimination Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks Oklahoma's line between larceny by fraud and embezzlement is determined as we have noted with reference to the time when the fraudulent intent to convert the property to the taker's own use arises we have not the slightest basis for inferring that line has any significance in eugenics nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses in terms of fines and imprisonment the crimes of larceny and embezzlement rate the same under the Oklahoma code only when it comes to sterilization are the pains and penalties of the law different equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn in buck versus bell the Virginia statute was upheld though it applied only to feeble minded persons in institutions of the state but it was pointed out that so far as the operations enable those who otherwise must be kept confined to be returned to the world and thus open the asylum to others the equality aimed at will be more nearly reached here there is no such saving feature and bezzlers are forever free those who steal or take in other ways are not if such a classification were permitted the technical common law concept of a trespass based on distinctions which are very largely dependent upon history for explanation could readily become a rule of human genetics it is true that the act has a broad severability clause but we will not endeavor to determine whether its application would solve the equal protection difficulty the supreme court of Oklahoma sustained the act without reference to the severability clause we have therefore a situation where the act as construed and applied to petitioner is allowed to perpetuate the discrimination which we have found to be fatal whether the severability clause would be so applied as to remove this particular constitutional objection is a question which may be more appropriately left for adjudication by the Oklahoma court that is re-emphasized here by our uncertainty as to what excision if any would be made as a matter of Oklahoma law it is by no means clear whether if any excision were made this particular constitutional difficulty might be solved by enlarging on the one hand or contracting on the other the class of criminals who might be sterilized reversed end of Skinner vs. State of Oklahoma ex-Relatione Williamson union of the United States Supreme Court