persons as to the negroes: “What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States; and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them because of their color. 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 distinctively 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 is possible that some qualifications are necessary to this statement (People v. Gallagher, 93 N. Y. 438); but, taking it as substantially true, I am not aware of any reason why that which is here said of the scope of the protection and immunity afforded by these clauses to the blacks is not also true as regards any other “person.” That part, therefore, of the excepting clause of the statute now in question, which purports to exclude tribal Indians from the benefit of it, appears to be contrary to the Constitution of the United States.
It is urged that, if this be so, the court must hold the whole statute unconstitutional, because, otherwise, a judicial tribunal would, in effect, be legislating Indians into the privileges of the statute, and giving them a benefit which the Legislature never intended that they should have. But I think this argument rather plausible than sound. It is well settled that a part only of a statute may be held to be void and the rest remain in force. “When part of a statute is unconstitutional, that will not authorize the Court to declare the remainder of the statute void unless all the provisions are . . . so connected in meaning that it cannot be presumed that the Legislature would have passed one without the other.” Com. v. Hitchings, 5 Gray, at p. 485; Sedgwick on Construction of Stat. and Const. Law, 2d ed., 43, note (a). In this case the Legislature gave a general right, and excluded from it what may fairly be supposed to be a small class of persons. This exclusion is unconstitutional; but there is nothing to indicate that the Legislature regarded the exclusion as an essential part, or in any other light than as a quite subordinate part of their general purpose.
Supreme Court of the Pow-Wow.
- Fire Insurance. Loss occasioned by the felonious Act of the Wife of the Assured. Rights of the Insurer.
The facts were these: A insured B’s house. B’s wife, C, without the connivance of B, maliciously burned the house with the intention of enabling B to get the insurance money. A, having paid the policy to B, sues C. The argument against recovery is that A’s only remedy is to be subrogated to the rights of B against C; but as a husband cannot sue his wife, A has no remedy whatever against C. This reasoning would undoubtedly prevail in England today. [Cf. Midland Ins. Co. v. Smith, 6 Q. B. D. 561.]