BRIEF OF CHARLES H. TUTTLE IN SUPPORT OF THE CONSTITUTIONALITY OF THE COSTIGAN-WAGNER ANTILYNCHING BILL

The horrifying lynchings which occurred in a number of States near the end of last year and in which both white men and black were murdered by the mob have been eloquent proof that this form of primitive savagery is not on the decline and that both in its manifestation and consequence it is a matter not only of concern to the individual States but a great peril to the Nation as a whole.

These are days when the bulwarks of government must be strengthened and when the danger of mob rule anywhere in our land must be regarded as a national

menace.

Unless respect and reverence for our orderly institutions of constitutional government are preserved in the minds of our people, the end may quite conceivably be national dissolution. Judgment by mob and trial by fury will not pause at the hair line of any nice distinctions. Once proclaim that the bitterness of public indignation has justification for replacing the processes of law and of constitutional government with the violence of the lowest passions, and the whirlwind will speedily be the reaping from this sowing of the wind.

Furthermore, there is national danger, particularly in these times, in causing large sections of our population to believe that they are outside the effective protection of government and in thus loosening their attachment to our institutions.

That nation is hardly worthy of the name which does not protect its own citizens. In large groups of our population there is bitter irony in the contrast between the strength and determination with which our National Government defends the rights of American citizens in foreign lands and its complete impotence in the matter of defending the same citizens against the consequences of mob rule within its own borders.

Moreover, these outbursts of primitive savagery, so often centering in racial passions, have obviously tended to lessen the respect in which our institutions are held abroad and have not infrequently embarrassed us as a Nation in our protests against racial injustice and persecution in other lands. These all too frequent lynchings, taken together with our spectacular gang warfares and murders, are commonly cited in the foreign press as proof of ineffective government and of a spirit of lawlessness in America.

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The time, therefore, has come when the Nation should defend itself against this national evil which has assumed colossal proportions. Whatever our views of States' rights may be, we must recognize that under present-day conditions in the solution of national questions, State boundaries are becoming less distinct. This change is due to social development, to science and invention, and rests upon the closer relations of trade and amity which exist between communities. More and more the national resources are called upon for the making of local improvements within the several States and for the relief of their population from economic and physical distress. Hardly, therefore, does it seem fair that where the National Government is, on the solicitation of State and local communities, making ever-increasing investment among them, they should deny to the National Government an interest and a voice in preventing in their own midst recurrences of mob insurrection which destroy the security of the national investment and which undermine the strength of the national credit and of the national institutions.

Surely, nothing in our National Constitution prevents our National Government from undertaking such an act of self-preservation and from protecting itself against the consequences of the break-down of due process of law through State inaction and of wholesale discrimination in the effective protection of the laws through the tyrannies of mob rule.

The power thus to protect the Nation against internal national dangers of this character were expressly conferred upon Congress by the United States Constitution.

Section 4 of article IV of the Federal Constitution declares:

"The United States shall guarantee to every State in this Union a republican form of government.

Section 1 of article XIV (fourteenth amendment), declares:

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"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. 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."

Section 5 of article XIV (fourteenth amendment) declares:

"The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

These sections deserve a liberal interpretation in favor of the rights which they were designed to protect.

In Strauder v. West Virginia (100 U. S. 303) the Supreme Court said (p. 307): "If this is the spirit and meaning of the amendment (fourteenth amendment), whether it means more or not, it is to be construed liberally to carry out the purposes of its framers."

The same decision declares that in consequence, while the precise words of the amendment are prohibitory, they imply, and by implication confer, positive immunities and rights which cannot lawfully be invaded by the prohibited acts. To quote (p. 307):

"The words of the amendment (fourteenth amendment), it is true, are prohibitory, but they contain the 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 toward reducing them to the condition of a subject race."

By necessary implication, as well as by the express mandate of the fifth section of the fourteenth amendment, Congress has not only the power but the duty to protect the rights conferred or guaranteed by the Federal Constitution either by express declaration or by implication. The Supreme Court has uniformly held that the National Government has the power, whether expressly given or not, to secure and protect the rights conferred and guaranteed by the Constitution. (U. S. v. Reese, 92 U. S. 214; Strauder v. West Virginia, 100 U. S. 303).

The Supreme Court has accepted as essential to the national supremacy the necessary doctrine that Congress, in the absence of a positive delegation of powers to the State legislatures, may, by its own legislation, enforce and protect any rights derived from or created by the National Constitution. It was so declared in Prigg v. Commonwealth of Pennsylvania (16 Pet. (U. S.) 539), where Mr. Justice Story, speaking for the Court, laid down these propositions:

"That a clause in the Constitution conferring a right should not be so construed as to make it shadowy, or unsubstantial, or leave the citizen without a remedial power adequate for its protection, when another construction equally accordant with the words and the sense in which they were used would enforce and protect the right granted.

"That Congress is not restricted to legislation for the execution of its expressly granted powers; but, for the protection of rights guaranteed by the Constitution, may employ such means, not prohibited, as are necessary and proper, or such as are appropriate, to attain the ends proposed."

In United States v. Reese (92 U. S. 214), it was said by Chief Justice Waite (p. 217):

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Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and the manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. These may be varied to meet the necessities of the particular right to be protected."

Furthermore, the protection which these sections of the Federal Constitution throw around the rights which they guarantee is a protection not only against their violations by a State acting in its corporate capacity, but also against their violation by individuals acting in any official capacity derived, directly or indirectly, from the State. In consequence, any ministerial, executive, legislative, or judicial officer, deriving his authority, directly or indirectly, from a State, who invades any of these guaranteed rights is acting unlawfully; and Congress has the power to enact proper legislation to protect these rights from any such invasion.

As said in Ex parte Virginia (100 U. S. 339), at page 347:

"A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with

the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it."

In Home Telephone & Telegraph Co. v. City of Los Angeles (227 U. S. 278), the Supreme Court, through Mr. Chief Justice White, said (p. 286):

"The provisions of the amendment as conclusively fixed by previous decisions are generic in their terms, are addressed, of course, to the States, but also to every person whether natural or judicial who is the respository of State power. By this construction the reach of the amendment is shown to be coextensive with any exercise by a Sate of power, in whatever form exerted." In Virginia v. Rives (100 U. S. 313), it was said (p. 318):

"It is doubtless true that a State may act through different agencies, either by its legislative, its executive, or its judicial authorities; and the prohibitions of the amendment extend to all action of the State denying equal protection of the laws, whether it be action by one of these agencies or by another. Congress by virtue of the fifth section of the fourteenth amendment, may enforce the prohibitions whenever they are disregarded by either the legislative, the executive, or the judicial department of the State. The mode of enforcement is left to its discretion. It may secure the right—that is, enforce its recognition— by removing the case from a State court in which it is denied into a Federal court where it will be acknowledged."

In Raymond v. Traction Co. (207 U. S. 20), the Supreme Court said (p. 36): "The provisions of the fourteenth amendment are not confined to the action of the State through its legislature, or through the executive or judicial authority. Those provisions relate to and cover all the instrumentalities by which the State acts, and so it has been held that whoever, by virtue of public position under a State government, deprives another of any right protected by the amendment against deprivation by the State violates the constitutional inhibition; and as he acts in the name of the State and for the State, and is clothed with the State's powers, his act is that of the State."

For the same reason the prohibitions of the fourteenth amendment apply to local officers as well as to State-wide officers, for officers of counties, States, or other local subdivisions of government are in the ultimate analysis the repository of the power of the State. Hence, in Home Telephone & Telegraph Co. v. City of Los Angeles (227 U. S. 278), it was held that acts done by a local officer under the authority of a municipal ordinance passed by virtue of power conferred by the State are embraced by the fourteenth amendment. The Supreme Court said that the exercise of municipal authority is the exertion of State power within the purview of the fourteenth amendment (p. 295).

So likewise in Yick Wo v. Hopkins (118 U. S. 356), it was held that a municipal ordinance to regulate the carrying on of public laundries within the limits of the city of San Francisco, which conferred purely arbitrary power upon the municipal authorities to give or withhold consent, was violative of the fourteenth amendment. The Court said that the principles of the fourteenth amendment are to be freely extended to the quasi-legislative acts of interior municipal bodies (p. 371).

Indeed, the Supreme Court has applied the fourteenth amendment to mere matters of administration by local officials even though the municipal or State law under which they were acting contained in itself no arbitrary discriminations and no denials of due process or the equal protection of the laws.

In Tarrance v. Florida (188 U. S. 519), Mr. Justice Brewer, speaking for the Supreme Court, said (p. 520):

"The contention of plaintiffs in error is that they were denied the equal protection of the laws by reason of an actual discrimination against their race. The law of the State is not challenged but its administration is complained of.

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"Such an actual discrimination is as potential in creating a denial of equality of rights as a discrimination made by law."

Again in Yick Wo v. Hopkins (118 U. S. 356), an ordinance of the city of San Francisco, which made it unlawful to maintain laundries without first having obtained the consent of the board of supervisors, was so administered that Chinamen were denied the right to maintain laundries solely because of their race and nationality. In holding that this administration of the ordinance was violative of the fourteenth amendment the Supreme Court said (p. 373): "The facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that whatever may have been the intent of the ordinances as adopted, they are

applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the fourteenth amendment to the Constitution of the United States. Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand so as practically to make just and illegal discriminations between persons in similar circumstances material to their rights, the denial of equal justice is still within the prohibition of the Constitution. This principle of interpretation has been sanctioned by this Court in Henderson v. Mayor of New York (92 U. S. 259); Chy Lung v. Freeman (92 U. S. 275); Ex parte Virginia (100 U. S. 339); Neal v. Delaware (103 U. S. 370); and Soon Hing v. Crowley (113 U. S. 703)."

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"The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which, in the eye of the law, is not justified. The discrimination is, therefore, illegal and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the fourteenth amendment of the Constitution. The imprisonment of the petitioners is, therefore, illegal and they must be discharged." Another important principle sustained by repeated decisions of the Supreme Court in interpreting the fourteenth amendment is that even if the State officer, in enforcing an arbitrary discrimination or a denial of the equal protection of the laws, is acting without authority derived from the Constitution and the laws of the State or is even acting contrary thereto, nevertheless, his conduct is embraced by the fourteenth amendment and can be dealt with accordingly.

For example, in Neal v. Delaware (103 U. S. 370) it was held that the exclusion, because of their race and color, of citizens of African descent from the grand jury that found, and from the petit jury that was summoned to try, the indictment, if made by the jury commissioners, without authority derived from the constitution and laws of the State, was a violation of the prisoner's rights under the fourteenth amendment; and his motions to quash the indictment and the panels of jurors should have been sustained. The court, quoting from its earlier opinion in Ex Parte Virginia (100 U. S. 339), said (p. 397):

"The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are executed, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty without the due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition."

In Virginia v. Rives (100 U. S. 313) the State officer charged with the duty of selecting prospective jurors directly violated the State law prohibiting racial discrimination. The Supreme Court, while acknowledging that the officer had thereby made himself punishable at the instance of the State, went on to say that nevertheless "his act was the act of the State and was prohibited by the constitutional amendment" (p. 321).

A striking illustration of this principle occurs in Home Telephone & Telegraph Co. v. City of Los Angeles (227 U. S. 278). There the State constitution of California contained guarantees of due process and equal protection of the laws, identical with those in the fourteenth amendment. Certain municipal officers, in their administration of a local ordinance, were guilty of arbitrary discrimination. Notwithstanding that their acts violated the constitution of their own State, the Supreme Court held that their action could be nullified and corrected through the Federal courts, acting under the fourteenth amendment, without waiting for a State court to declare that their acts also violated the State constitution. The Supreme Court declared that inasmuch as local officers were acting or purporting to act "by virtue of public position" their conduct was embraced by the fourteenth amendment. The Court took occasion, in effect, to overrule (p. 294) its earlier decision in the case of Barney v. City of New York (193 U. S. 430) that where the local officer's act was forbidden by State statute it could not be said to be the act of the State within the meaning of the fourteenth amendment. The Supreme Court, speaking by Chief Justice White, expressly rejected the proposition that "the terms of the fourteenth amendment reached only the acts done by State officers which are

within the scope of the power conferred by the State" and said that on the contrary (p. 287):

"The settled construction of the amendment is that it presupposes the possibility of an abuse by a State officer or representative of the powers possessed and deals with such a contingency. It provides, therefore, for a case where one who is in possession of State power uses that power to the doing of the wrongs which the amendment forbids, even although the consummation of the wrong may not be within the powers possessed, if the commission of the wrong itself is rendered possible or is efficiently aided by the State authority lodged in the wrongdoer. That is to say, the theory of the amendment is that where an officer or other representative of a State in the exercise of the authority with which he is clothed misuses the power possessed to do a wrong forbidden by the amendment, inquiry concerning whether the State has authorized the wrong is irrelevant, and the Federal judicial power is competent to afford redress for the wrong by dealing with the officer and the result for ais exertion of power." So, likewise, in Ex parte Virginia (100 U. S. 339) it was urged that Judge Coles, who had kept men off the jury for no other reason than that they were colored, was not acting on behalf of the State but was acting against the State, and, therefore, his act was not that of the State. The Supreme Court held otherwise, ruling that his action was not a private act but one made in the course of official conduct and by virtue of his public position.

A final and important principle is that denial of due process or the equal protection of the laws may be accomplished by nonaction quite as well as by action. An unconstitutional discrimination may result quite as effectually from the negative as from the affirmative conduct of a public official.

In United States v. Blackburn (Fed. case no. 14603), District Judge Krekel, in charging the jury in a case where there had been a conspiracy to deprive colored citizens of equal school privileges, said (p. 1159):

"By the equal protection of the laws, spoken of in the indictment, is meant that the ordinary means and appliances which the law has provided shall be used and put in operation alike in all cases of violation of law. Hence, if the outrages and crimes shown to have been committed in the case before you were well known to the community at large, and that community and the officers of the law willfully failed to employ the means provided by law to ferret out and bring to trial the offenders, because of the victims being colored, it is depriving them of the equal protection of the law."

In Louisville & N. R. Co. v. Bosworth (230 Fed. 191), District Judge Cochran said (p. 207):

"What is it, then, to deny the equal protection of those laws? It is to refuse to grant or to withhold equal treatment in conferring or securing rights or in imposing or exacting performance of duties."

In Moore v. Dempsey (261 U. S. 86) the Supreme Court held that a trial for murder in the State court in which the accused were hurried to conviction under mob domination without regard for their rights is a denial of due process and equal protection; and quoting from its opinion in Frank v. Mangum (237 U. S. 309, 335), said (p. 91):

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"If the State, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the State deprives the accused of his life or liberty without due process of law.' If the case is that the whole proceeding is a mask— that counsel, jury, and judge were swept to the fatal end by an irresistible wave of public passion, and that the State courts failed to correct the wrong, neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this court from securing to the petitioners their constitutional rights.'

So, likewise, in Virginia v. Rives (100 U. S. 313) it was said by the Supreme Court (p. 319):

"It is evident, therefore, that the denial or inability to enforce in the judicial tribunals of a State, rights secured to a defendant by any law providing for the equal civil rights of all persons citizens of the United States, of which section 641 speaks, is primarily, if not exclusively, a denial of such rights, or an ability to enforce them, resulting from the constitution or laws of the State, rather than a denial first made manifest at the trial of the case."

It follows from the foregoing that nonaction of an officer of the State is reached by the fourteenth amendment as much so as if he acted positively and directly. In other words, if an officer stands by and refuses to protect a citizen and does