On October 8, 1904, the grand jury of Madison county, Kentucky, presented in the circuit court of that county an indictment, charging:
'The said Berea College, being a corporation duly incorporated under the laws of the state of Kentucky, and owning, maintaining, and operating a college, school, and institution of learning, known as 'Berea College,' located in the town of Berea, Madison county, Kentucky, did unlawfully and wilfully permit and receive both the white and negro races as pupils for instruction in said college, school, and institution of learning.'
This indictment was found under an act of March 22, 1904 (Ky. Acts 1904, chap. 85, p. 181), whose 1st section reads:
'Sec. 1. That it shall be unlawful for any person, corporation, or association of persons to maintain or operate any college, school, or institution where persons of the white and negro races are both received as pupils for instruction, and any person or corporation who shall operate or maintain any such college, school, or institution shall be fined $1,000, and any person or corporation who may be convicted of violating the provisions of this act shall be fined $100 for each day they may operate said school, college, or institution after such conviction.'
On a trial the defendant was found guilty and sentenced to pay a fine of $1,000. This judgment was, on June 12, 1906, affirmed by the court of appeals of the state (123 Ky. 209, 94 S. W. 623), and from that court brought here on writ of error.
Messrs. Guy Ward Mallon and John G. Carlisle for plaintiff in error.
[Argument of Counsel from pages 46-51 intentionally omitted]
Messrs. N. B. Hays, James Breathitt, Thomas B. McGregor, and Charles H. Morris for defendant in error.
Statement by Mr. Justice Brewer:
[Argument of Counsel from pages 51-53 intentionally omitted]
Mr. Justice Brewer delivered the opinion of the court: