570
THE GREEN BAG
debt and obligation, and upon the mortgage learning in which white and colored persons may securing the same, except upon mortgages re be taught at the same time, in the same place, is corded prior to July i, 1905, equal to five mills on within the police power and valid, Berea College each dollar of the amount of the principal debt v. Commonwealth, 94 S. W. 623. The same prin or obligation. The provision of the act exempt ciples, says the court, which gave rise to. and fur ing from its operation mortgages recorded prior nished support for, the statute prohibiting mar to July i, 1905, is attacked on the ground that riage between the races and the statute requiring inasmuch as the holder of such mortgages had a the separation of the races in public conveyances, right to make deductions for indebtedness while justify the statute in question. In their attack with respect to mortgages recorded after that on the statute, counsel argued that while statutes date he has not, the result was that some mort providing for separate public schools and requir gages were taxable and some not taxable under ing the separation of the races in public convey exactly the same conditions and hence that the ances were proper because they prevented an holders of that class of mortgages which were enforced association of the races, nevertheless, taxable were denied the equal protection of the the statute under consideration was invalid be law. In answer to this contention it is declared cause it applied to private schools and interfered that the government may change the methods, with the association of the races, even though or rate, of taxation and classify new subjects for such association should be voluntary. This, the taxation at any time in the exercise of its sover court holds, is no sufficient ground for drawing a eign power, that the power of the state to impose distinction between the statutes. The thing aimed taxation is in effect unlimited in extent, so far at, says the court, is not merely volition, but some as no constitutional guaranty is infringed upon, thing deeper and more important than the mere and is controlled only by the considerations of matter of choice. Indeed the court admits that wisdom and policy, to be reasonably expected if the mere choice of the persons to be affected of a legislative body acting in the interests of its were the only object of the statutes, it might well constituents. Under these principles and in lieu be doubted whether any of them were a proper of the fact that there is no guaranty that taxation exercise of police power. It is, however, argued shall be just and equal, even though there is from that the races are, according to the divine plan, the nature of our political institutions to be im separate and distinct from each other, each en plied a guaranty, that taxation shall be equal in dowed with the instinct of race preservation and the sense that it shall not be arbitrary, it is de each originally created to inhabit different por clared that the statute does not provide for such tions of the globe. The conclusion is drawn from an arbitrary system of taxation as to be regarded this that the welfare of each of the races depends void for discrimination. The feature of the upon the preservation of its race characteristics statute which imposes a tax at a fixed rate on unimpaired and unaffected by those of any other the amount due on the mortgage is held not to race. To accomplish this, the court holds to be be a deprivation of property without due process the object of these statutes, so that they affect at of law. On this point the court says, — " Taking its most vital point the welfare of society and property under the taxing power is taking it by are especially within the province of the police due process of law. In such a case due process power. of law does not mean some judicial proceedings. The following should perhaps be added to assign to Proceedings for the collection of taxes are neces sarily summary and if not arbitrary or unequal the above decision its proper limits. The statute provides : " Sec. 4. Nothing in this act or illegal, they are not within the constitutional provision. It is not essential to the validity of shall be construed to prevent any private school, the tax that the person should have been present college, or institution of learning from maintaining a or should have had the opportunity to be present separate and distinct branch thereof, in a different in some tribunal when assessed. Due process locality, not less than twenty-five miles distant, for the education exclusively of one race or color." of law and equal protection of the law are se The court holds that while the spirit of the act cured, if the law operates alike upon all who are similarly situated and if it does not subject the would be violated by teaching the two races in person to an arbitrary exercise of the powers the same building or group of buildings, the twentyfive-mile limit is unreasonable and oppressive. of government." It says that the section violates the limitations CONSTITUTIONAL LAW. (Police Power — upon the police power, but it could have hardly been Schools for White and Colored Persons.) Ken the intention of the court to throw out the whole sec tucky Ct. of App. — A statute prohibiting the tion, since the first part of the proviso materially miti maintenance and operation of an institution of gated the prohibition of the act. There remains, in
