when a. possibility of wealth belonging to him is suggested. In short, for I do not care to protract this opinion, I cannot reconcile voting for this resolution, and the subsequent indifference of the parties to the prospects and affairs of the company, with their present claim that the,}' never knew nor assented to the giving up of this stock. It is not in accord with my convictions as to the probable conduct of ordinary men; and here I refer to wha.t I said in the opening of this opinion, that, there being no confidential relation between Bowen and the complainant or Binckley, it devolves upon the complainant to prove that Bowen's conduct was wrongful, and not upon Bowen to prove that it was rightful. Doubts in the matter are to be resolved against the complainant. One thing more I should mention; I haye spoken of complainant and Binckley as though they occupied the same position as developed in the testimony. This is not strictly true. Complainant was present at the directors' and stockholders' meeting; Binckley was not. The former's relations to the actual management of the affairs of the company seems to have been more intimate than the latter's. And still, if I may so define it, it seems to me that Bowen and Tankersley occupied one relation to the company and these transactions, while complainant and Binckley occupied another and partially antagonistic; and, further, that the relations between the two latter seem to have been such that it is only fair to presume that what one knew and assented to the other did also. Hence I have not distinguished between them, but have spoken of them as agreeing in knowledge and action. I do not know that I can add anything more to express my conclusions, or the reasons therefor, unless I were to go into the mere details of the testimony, and that would be a protracted and useless labor. My conclusion therefore is that the wrong charged upon the defendant Bowen is not proved. Of course, in the view I have taken, the matter of amendment to the answer is immaterial. A decree will be entered dismissing the bill.
CLA.YBROOK and others v.
OF OWENSBORO and others.
!Circuit Oourt, D. Kentucky. March 8,1884.)
CONSTITUTIONAL LAW-ACT DlscRunNATING UETWEEN DISTRIBUTION OF VOID. AND BI,ACli m
Former op nion, 16 FED. REP, 297, adhered to.
2, SAME-MANDATORY INJUNCTION.
The United States cirt;uit court for the district of Kentncky has nO'power to issue a mandatory injnnction requiring a distribution of the money n,i.,ed 1'1'0111 taxation for public schools, under the acts of the Kentucky legblature passed in 1881, as there is no authority in said act for such distriblltion, and complainants have no contract wlJich the court can enfon:e by affirmative relief.
ClLAYBRGOK V. CITY OF OWENSBORO.
Marshall, for complainants. Sweeney, Owen J; Ellis, for defendants. BARR, J. This case is before me on the merits, and after a careful consideration of the arguments presented by the learned counsel representing the defendants, I see no reason to change the views expressed in the opinion filed when the temporary injunction was granted. The schools organized and sustained in Owensboro, under the act of 1871 and its amendments, are in fact and in law part of the common-school system of this state. They may be called "pn blie schools," but this makes no difference. These schools are common alike to all white children of school age, and are sustained by taxation. Taxation to sustain schools is permitted becaube the education of the children of a state is a recognized governmental purpose. If the state can constitutionally exclude colored children from all benefits arising from this tax, levied as it is for a governmental purpose, because white people pay the tax, there is no good reason why the state may not limit and distribute the benefit of government in every respect according to race or color, and in proportion to the taxes paid by each race or color. This discrimination in the benefit of the taxes raised under the act of 1871 is, I think, denying colored children of Owensboro the equal protection of the law, and within the inhibition of the fourteenth amendment to the federal constitution. The affidavits which wel·e before me when the temporary injunction was granted, proved that there were about 500 colored children of the school age, and about 800 white children of that age, in the city of Owensboro; but the depositions now in the record show that this was a mistake. The evidence now in would indicate there was in 1882 one colored child of the school age in said city to three white children of that age; hence, if the funds arising from taxes, raised under both the act of 1871 and the act of lR81, were distributed between the colored and white children of the school age, it would be about one dollar to the colored schools to every three dollars to the white schools. If this court had the power to issue a mandatory injunction requiring a distribution of the money raised from this tax, it should take into oonsideration the sums received by the colored schools under the act of 1881. But after a careful consideration of the question I cannot satisfy myself that the court has authority in this action to order the payment of any part of the money raised by and under the act of 1871 to complainants, or to the trustees of the colored schools of Owensboro. The difficulty in the way of granting such affirmative relief is that there is no legislative enactment authorizing such a use of any part of the money raised under this act, neither have the complainants, or those they represent, any contract right which this court can enforce in this action by affirmative relief. It may be that the entire act of 1871, and amendments, is unconstitutional,-a Question not now decided. But if it be assumed that the state can constitutionally levy the same rate of tax upon colored
and white people by separate and distinct acts, as bas been done under the acts of 1871 and 1881, and that the· only objection to the act of 1871 is that the benefits arising from the taxes raised are confined to the white race, and that the other parts of this act remain in full force, how is this conrt to administer this fund with. out legislative authority, or contract right? It is, however, the right, as well as the duty, of this court to declare a legislative euactment unconstitutional if it be unconstitutional, and, in a proper case, enjoin persons from acting under the authority of such an act. The bill prays that on final hearing the defendants be adjudged and decreed to distribute the taxes, arising from this levy for school purposes, nnder the act of 1871, in accordance with law and equity, and for all proper relief in the mean time; and for a restraining order, preventing the payment out of any money raised under this law for school purposes. The temporary injunction restrained the city of Owensboro from paying out a certain proportion (5-13th) of the money raised for school purposes under this law, upon the idea that this would fully protect any right complainants might sustain upon final hearing; and I understand from the manner which the case has been prepared and argued by counsel representing complainants that if complainants cannot get from this court an affirmative order di.stributing to the colored schools of Owensboro a part of this fund, they do not desire an injunction prohibiting the payment of all of the money raised under the act of 1871, but only such a proportion as would cover the proportion which the colored school would receive were there a division according to the number of children of school age. If I am correct in this, complainants may have a decree enjoining and restraining the proper parties from applying to the use of the schools organized for and at which white children only are allowed to attend one· fourth of the money heretofore, or which may be hereafter, collected under the authority of the act of 1871 and its amendments. This decree will not apply to money raised and paid out prior to the temporary injunction, and will leave undisturbed the other three-fourths of the money raised under said act. If, however, counsel for complainants think they are entitled and desire an injunction restraining the collection 01' payment of any taxes under this act of Hl71, they must give notice to the opposite counsel, and I will hear an a.rgument upon this question either by brief or orally, OJ! both, as either counsel may wish.
See U. S. v. Buntin, 10 FED. REP. 730 and note, 737.-[ED.
WESTERN & A. B. B.
& A. R. R. and others.
(Circuit Oourt, E.
Tennessee, S. D. April Term, 1885.)
OARRIERS OF PASSENGERS-SEPARATION OF PASSENGERS ON ACCOUNT OF COLOR.
A railroad company may set apart certain cars to be occupied by white people, and certain cars to be occupied by colored peopie j but if it charges the same fare to each race it must furnish substantially like and equal accomm(}dations.
SAME-DUTY TO PROTECT PASSENGERS FRO}I INSULT AND INJUUY.
It is the duty of a railroad company to protect its passengers from insult and injury so far as it can, and if the conductor and brakeman on a train conspire with passengers thereon to remove another passenger who has a right to be on such train, or see such passengers eject their fellow-passenger, and make no effort to prevent it, or m'lke no attempt to repair the mischief by restoring him to his seat, the company will btl liable.
SAME-DuTY OF PASSENGER.
While a railroad company is held to a rigid accountnhility as to its rIuties to its passengers, a passenger is required to demean himstllf in such a way as not to be offensive, vulgar, obscene, or coarsely disagreeable to his fellow-passengers, or expose them to suffering- or danger; and if he fail in these respects he may be removed by the train-men from the train; and in such removal they may use as much, and no more, force as is necessary to his removal.
SAME-LIABq.rry OF PASSENGER FOU TORT.
A passenger who enters a car and forcibly ejects a fellow-passenger therefrom is liable therefor.
SAME-MEASURE OF DAMAGES FOR EJECTION FROM TRAIN.
If a colored man enters a car set apart for white people with knowledge of that fact, so that he may be removed from the car and train for the pnrpose of bringing suit for damages against the railway company for such removal, the jury may consider that fact in mitigation of damages, and should not allow liberal and exaggerated compensation for his mental sufferings; but if no such intention appears, he may be allowed full and liberal compensation for his sufferings and other injuriesr and such sum as punitive damages as the jury may think l'igllt in preventing the recurrence of the like mischief.
Charge to Jury. W. J. Clift and Wheeler r:t Marshall, for plaintiff. Olift, Bates Cooke, for defendants. KEY, J., (orally.) In order to be prepared to decide legal controversies justly, the judge and the members of the jury should be careful to avoid the influence of partiality or prejudice. We belong to the white race, while the plaintiff is a colored man. During the entire period of our recollection there have been bitter controversies and conflicts over the condition and circumstances, and rights of the colored race in this country. From these much bad blood, hostile feeling, and prejudice have resulted. Indeed, race prejudice, in all ages, and in all parts of the earth, has been the fruitful source of animosity and war. On, the other hand, the principal defendant is a railroad, and in this state, as well as in a great part of our coun· try, railroads have been the subjects of much denunciation and abuse, and of popular hatred. It is ;your duty to steer clear of all these influences upon one side as well as the other, and I believe you will do 80. The ancients often painted Justice as blindfolded, 80 that parties could not be seen, and holding the scales with even hand. So we