Ex Parte Hollman

60 S.E. 19, 79 S.C. 9, 1908 S.C. LEXIS 3

• Court: Supreme Court of South Carolina
• Decided: January 16, 1908
• Docket: 6726
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Woods.

1 Under habeas corpus proceedings, Jack'Hollinan has applied to this Court for release from imprisonment, alleging the statute under which he was convicted and sentenced to be unconstitutional. The position that the unconstitutionality of a statute cannot be tested under a writ of habeas corpus is maintained by some courts of high authority, but is opposed to the weight of reason and precedent. There is no difference of opinion that a writ of error or the statutory-appeal cannot be supplanted in criminal procedure by resort to the writ of habeas corpus for correction of mere errors of law. But the distinction is that the courts are bound to treat unconstitutional enactments as void in whatever proceedings they may be encountered. An unconstitutional statute, though having the form and name of law, is in reality no law, and the courts must liberate one suffering imprisonment under it just as if there had never been the form of a trial, conviction and sentence. The office of the writ of habeas corpus is to liberate those who are imprisoned without authority of law. While the point was not discussed, this must have been- the view of the Court in State v. Higgins, 51 S. C., 51, 28 S. E., 51; 38 L. R. A., 865; and Ex parte Keeler, 45 S. C., 537, 23 S. E., 865; 31 L. R. A., 678; for the Court considered under habeas corpus the constitutionality of the statutes under which the petitioners were held, and rested its decision in both cases on the determination of that question. This is the view of the Supreme Court of the United States. Ex parte Siebold, 100 U. S., 371; Dimmick v. Tomkins, 194 U. S., 540. The numerous other authorities to the same effect will be found collated in 87 Am. St. Rep., 175; 39 L. R. A., 449; 21 Cyc., 302; 15 A. & Enc., 169. We proceed, therefore, to consider the constitutionality of the statute to determine whether the petitioner should be released.

2 Section 357 of the Criminal Code, the statute under which the petitioner was convicted and which is here attacked, is as follows: “Any laborer working on shares of crop or for wages in money or other valuable consideration under a verbal or written contract to labor on farm lands, who shall receive advances either in money or supplies and thereafter wilfully and without just cause fail to perform the reasonable service required of him by the terms of the said contract shall be liable to prosecution for a misdlemeanor, and on conviction shall be punished by imprisonment for not less, that twenty days nor more than thirty days, or to be fined in the sum of not more than twenty-five dollars nor more than one hundred dollars, in the discretion of the Court: Provided, The verbal contract herein referred to shall be witnessed by at least two disinterested witnesses.”

The first question is whether this statute violates Sec. 24, Art. I of the State Constitution, which provides: “No person shall be imprisoned for debt except in cases of fraud.” The act refers exclusively to a farm laborer working for a consideration under a contract, who (1) “shall receive advances in money or supplies and (2) thereafter wilfully and without just cause fail to' perform the reasonable service required of him by the terms of the said contract.” It will be observed the statute does not require for the completion of the crime, proof of the making of the contract and the obtaining of the advances on the faith of it with the intention formed at the time not to perform the service. Such action as that on the part of the laborer would be fraudulent, and a statute providing for its punishment would not violate a constitutional provision allowing imprisonment for debt in cases of fraud. But the act under consideration provides imprisonment as a punishment for conduct after the contract has been made and the work begun, and the important inquiries are, first, is the conduct so made criminal, a failure to pay a debt; and, second, is such conduct consistent with good faith, with entire absence of fraud. If these inquiries are to be answered in the affirmative, then it follows the acts should be declared unconstitutional as providing for imprisonment for debt without proof of fraud.

The case of State v. Brewer, 38 S. C., 263, 16 S. E. R., 1001, 19 L. R. A., 362, holding constitutional the statute authorizing the imprisonment of one convicted of bastardy who fails to give the bond required by law, has no application, for the Court expressly held the penalty not to be a debt but a punishment for the crime of bastardy. If, however, we follow the cases State v. Williams, 32 S. C., 124, 10 S. E., 876; State v. Chapman, 56 S. C., 420, 34 S. E., 961; State v. Easterlin, 61 S. C., 71, 39 S. E., 250, then this act must be upheld. In the first case such legislation was held constitutional, the Court saying: “If the General Assembly sees proper to make the violation of a particular species of civil contracts a criminal offense, we are unable to discover in the provisions of the Constitution anything that forbids such legislation.” In State v. Chapman this very statute was sustained against the charge that it was discriminatory in favor of the landlord and against the laborer, but no reference is made to the question of imprisonment for debt. In State v. Easterlin, the statute was held not to provide imprisonment for debt, and the Court said: “Even if it could be so construed, the offense made punishable involves an element of fraud.” Nothing short of strongest conviction of fundamental error should induce the Court to essay a review of the conclusions embodied in these cases. We shall not discuss at length, the doctrine of stare decisis. It seems obvious it has less force when the constitutional rights of the citizen to his personal liberty is involved, than in those cases involving the fixedness of property rights and the regularity of procedure. With the profoundest respect for the Judges who delivered and concurred in these opinions, we cannot avoid the conclusion that the statute in question provides for imprisonment for debt without proof of fraud, and, therefore, attempts to deprive the citizen of one of the personal rights guaranteed by the Constitution of the State.

The mere receipt of money or supplies advanced by the employer cannot make the laborer anything more than a debtor to the 'employer; and without doubt the repayment of the money or the value of the supplies advanced puts an end to the legal obligation and the relation of debtor and creditor. The statute does not go to the extent of requiring- the laborer to pay the advances in labor, and, therefore, there is nothing to prevent his discharge of the debt for advances in the same manner as other debts are discharged.' It is equally clear that the service due by the laborer under the contract is also a debt within the meaning of the Constitution. Debt is that which is due from one person to another, whéther money, goods or services, and whether payable at present or at a future time. Century Dictionary; 13 Cyc., 399, and authorities cited. The term “debt,” within the meaning of the Constitution, is usually held to embrace obligations arising out of contract and to exclude liability for tort and for fines imposed for crime. Carr v. State, 34 L. R. A., 634, note; State v. Brewer (S. C.), 39 Am. St. Rep., 760.

Therefore, beyond dispute, the laborer referred to in the statute falls under the terms of the Constitution as a person who by his contract incurs a debt for advances received by him, and for labor which lie promises to perform. For the mere failure to discharge these debts the Constitution forbids his imprisonment. If, however, the laborer contracts such a debt fraudulently, or fraudulently avoids the discharge of it, he falls without the protection of the Constitution.

The vital question then is, whether the statute contemplates conviction only for fraudulent breach of the contract — fraudulent failure to pay the debt of service. This inquiry depends upon whether one who shall “wilfully and without just cause fail to perform the reasonable service required of him by the terms of the said contract” is necessarily guilty of fraud, for if not, then a laborer may be convicted and imprisoned for debt under the statute without proof of fraud. It is not wilful nor intentional injustice the statute makes criminal, but wilful and unjust failure to carry out a contract. This distinction is vital. Clearly a laborer may wilfully refuse to perform the service required; his refusal may be unjust and the service required may be reasonable, — that is, such as he contracted to- give, — and yet his action be free from fraud and taken with the utmost good faith, in the sincere belief that 'his refusal was just and the service required unreasonable under the terms of the .contract. Yet, however completely he may show his good faith, and however fully the Court and jury may be convinced of his good faith, conviction must follow unless the jury think he had just cause to abandon the contract or that the service required was not reasonable.

Wilful and unjust failure to perform a contract does not necessarily connote fraud. Bad faith is the test. One may wilfully or intentionally abandon a contract under a bona fide claim of right without being subject to the charge of fraud, though in fact the other party had not impaired his right to require performance. Ini addition to the abandonment being wilful, it may also be unjust without being fraudulent. Justice is rendering to every- man- his- due. An act may be wilful and unjust ethically and legally and yet not fraudulent, because it may be done with -such right intention as to completely negative the suggestion of actual fraud, and the grounds upon which the doer thought it right may be too rational for the law to impute fraud.

Obviously, the principle would be the same if the statute had provided imprisonment for a landlord who, having promised a laborer certain wages, and having the means, wilfully and unjustly refuses to pay him. No doubt fraud should be imputed where the debtor wilfully and unjustly refuses to pay any debt where he has the means, to- pay and the knowledge from the judgment of the Court, or otherwise, that there is a debt due and payment demanded. But injustice and fraud and unjust and fraudulent are far from being convertible terms. Fraud- is -corrupt injustice. No greater injustice has -ever been suffered than that inflicted by men not only incapable of fraud, but who in the doing of their unjust .acts were impelled by zeal for righteousness as they conceived it.

Whenever in a suit on a promissory note, or other contract, the Court gives judgment against a solvent debtor, this is an aid judication that the debtor wilfully and unjustly refused to pay that which the creditor reasonably demanded of him. Yet it would not be contended for a moment that the wilful refusal to pay, which the Court adjudges to' have been an unjust refusal to comply with the creditor’s reasonable demand, must be fraudulent. If so, every solvent litigant who unsuccessfully defends a suit on a promissory note, or for specific performance oí a contract, would be guilty of fraud, and a statute providing for his imprisonment would be constitutional. We perceive no difference between such a statute and the one now under consideration. Such legislation can not be constitutional, because it contemplates imprisonment for a wilful and unjust refusal to perform the services contracted for, though such refusal be the result of mistake of the laborer as to his legal rights, untainted by fraud. Had the General Assembly intended to make proof of fraud necessary to the conviction of the laborer under the statute, can it be doubted it would have said so in plain terms by the use of the word “fraud,” as it has done in all other statutes providing for the punishment of fraudulent practices ?

It is strenuously argued, however, that the act does not provide for imprisonment for debt under civil process, and that the General Assembly may make an act criminal and punishable by imprisonment which is not fraudulent nor recognized as morally wrong. The power of the General Assembly to make an act criminal which was before innocent is familiar. But the legislative power to make acts criminal and punishable by imprisonment cannot be extended to an invasion of the rights guaranteed the citizen by the Constitution. It is impossible to frame a valid statute punishing by imprisonment the exercise of the right to religious liberty, or the right to petition for the redress of grievances, or the right to be exempt from imprisonment for debt except in a case of fraud. These are all constitutional rights which cannot be abridged under the guise of legislation against crime. The exercise of them cannot be crime.

It is instructive to consider the extent to which other courts have gone on this subject. So far as our research extends the only case holding unjust failure to pay a debt to be always fraudulent is Ex parte Clark (N. J.), 45 Am. Dec., 394. In that case a statute was held constitutional which provided for imprisonment for one who “unjustly and unlawfully” refused to apply his property to the payment of his debts. The decision rests upon what we have endeavored to show is a wholly unsound proposition of law, namely, that injustice and fraud is the same thing.

In State v. Morgan (N. C.), 14 S. E., 968, the statute under review made it a criminal offense for any person “with intent to ¿heat or defraud another” to obtain advances by color of any promise to commence work or labor and then “unlawfully and wilfully fail to commence and complete said work according to contract without' a lawful excuse.” The North Carolina Constitution provides “there shall be no imprisonmlent for- debt except in cases of fraud.” The courts sustained the validity of the statute on the express ground that it required proof that advances were obtained with intent to cheat and defraud.

In Lamar v. State (Ga.), 47 S. E., 958, on the same grounds the Supreme Court of Georgia held constitutional a statute which provided “that if any person shall contract with another to perform for him services of any kind, with intent to procure money or other thing of value thereby, and not perform the service contracted for, to the loss and damage of the hirer, or after having so contracted, shall procure money or other thing of value from the hirer, with intent not to perform the service, to the loss and damage of the hirer, he shall be deemed a comjmon cheat and swindler, and shall be punished as for a misdemeanor.” The statute was upheld solely upon the ground that it provided punishment for obtaining advances with a fraudulent purpose not to perform the service promised. To the same effect is Banks v. State (Ga.), 52 S. E., 74. It is true, in this last case the courts sustained that portion of the act which made the procuring of the advances and the failure to render the service or to return the money advanced without sufficient cause, to the loss oí the hirer, prima facie evidence of fraud — holding the provision to be merely establishing a rule of evidence. The State v. Thomas (Ala.), 113 Am. St., 17. is to the same effect as to' the right of the Legislature to m|ake similar action prima facie evidence of fraud. That point is not involved in this case because there is no such provision in our statute. But it is to be observed that the return of the advances would, under our statute, be no defense.

In State v. Murray (La.), 40 So., 930, a conviction was upheld under a statute which provided: “That whoever violates a contract of labor, upon the faith of which money or goods 'have been advanced, shall be punished by fine in the sum of not less than ten or over two> hundred dollars, or, in default of payment, ninety days or less imprisonment, at the discretion of the District Court, unless the party-had first tendered to the person with whom he entered into the labor contract and from whom the money or goods was obtained, the amount of money or the value of the goods obtained.” It does not appear that the statute was assailed because providing imprisonment for debt. Indeed, such an objection could not have been m|ade, because the Constitution of Louisiana contains no prohibition against imprisonment for debt. Such a statute would be invalid under the Constitution of this State because it provides imprisonment for debt for service and advances, without a word indicating that there should be proof of fraud. In fact, it allows no excuse whatever for failure to pay the debt. In Toney v. State (Ala.), 37 So., 332, an act very similar to ours was declared unconstitutional as depriving the citizen of the liberty of contract protected by the Constitution of the United States, the Court not considering whether the act provided imprisonment for debt.

The respondents urged that imprisonment for the failure to perform personal service has been sustained by the Supreme Court of the United States in the case of Robertson v. Baldwin, 165 U. S., 275. This is true; that case does hold constitutional an act of Congress authorizing punish ment by imprisonment of deserting sailors. But the Constitution of the United States contains no provision against imprisonment for debt. Section 990, Volume I, Federal Statutes 1901, requires the Federal Courts to conform to the laws of the several States in respect to imprisonment for debt, but inasmuch as sections 4598 and 4599, Volume III, expressly provide for imprisonment of deserting seamen, these last sections must be construed as providing exceptions to the general rule of conformity to State statutes on the subject of imprisonmient for debt laid drawn in section 990. These sections are now repealed, but they were of force when Robertson v. Baldwin was decided. That case, therefore, is no authority for the proposition that seamen might be lawfully imprisoned for desertion under a State statute, notwithstanding a constitutional prohibition of imprisonment for debt except for fraud. We can find no case in this State or elsewhere sustaining the proposition.

On this reasoning we conclude the statute if given effect would take away the constitutional right of the citizen to be exempt from imprisonment for debt except in cases of fraud.

We next inquire whether the statute is invalid as an attempt to enforce involuntary servitude or peonage. The thirteenth amendment to the Constitution of the United States provides:

Section 1. “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

Section 2. “Congress shall have power to enforce this article by appropriate legislation.”

In the enforcement of this amendment Congress enacted the following statute, now. section 1990, Revised Statutes of 1901: “The holding of any person to service or labor under the system known as peonage is abolished and forever prohibited in the Territory of New Mexico, or in any other Territory or State of the United States; and all acts, laws, resolutions, orders, regulations or usages of the Territory of New: Mexico or any other Territory or State, which has heretofore established, maintained or enforced, or by virtue of which any attempt shall hereafter be made to- establish, maintain or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void.”

This. statute is thus interpreted in Clyatt v. United States, 197 U. S., 207, 215: “What is peonage? It may be defined as a status or condition of compulsory service, based upon the indebtedness of the peon to the master. The basal fact is indebtedness. As said by Judge Benedict, delivering the opinion in Jaremillo v. Romero, 1 N. M., 190, 194: ‘One fact existed universally; all were indebted to their masters, this was The cord by which they were seemed bound to their master’s service. Upon this is based a condition of compulsory service. Peonage is sometimfes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is- forced upon the debtor by some provision of law. But peonage, however created, is compulsory service, involuntary servitude. The peon can release himself therefrom, it is true, by the payment of the debt, but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary performance of labor or rendering of services in payment of at debt. In the latter case the debtor, though contracting to pay his indebtedness by labor or service, and subject like any other contractor to am\ action for damages for a breach of that contract, can elect at any tinie to break it and no law or force compels perform^ cmce or a continuance of the service. We need not stop to consider any possible limits or exceptional cases such as 'the service of a sailor (Robertson v. Baldwin, 165 U. S., 275) or the obligations of a child to its parents-, or of an appren tice to 'his master, or the power oí the Legislature to make unlawful and punish criminally, an abandonment by an employee of his post of labor in extreme cases. That which is conLfcmplated by the statute is compulsory service to secure the payment of a debt.’ ” The sentences we have italicized clearly indicate that such an enactment as this falls under the condemnation of the peonage statute.

It is not possible to bring contracts with agricultural laborers, such as that now under discussion, within the special cases referred to by Justice Brewer in this decision, for the statute was passed to enforce the thirteenth amendment to the United States Constitution, and the main purpose of that amendment was to prohibit any form of involuntary service by such laborers, especially negro laborers in the South. In this .opinion the Court, further considering the peonage: statute, says: “It is not open to doubt that Congress may enforce the thirteenth amendment by direct legislation, punishing the holding of a person in slavery or in involuntary servitude except as a punishment for crime. In the exercise of that power Congress has enacted these sections denouncing peonage and punishing one who holds another in that condition of involuntary servitude. This legislation is not limited to* the territories or other parts of the strictly national domain, 'but is operative in the States and wherever the sovereignty of the United States extends.”

It is important to observe our statute places no limit on the time for which a laborer mjay be bound under a contract to work, nor does it allow him to release himself from his burden to continue the service on pain of punishment as a criminal by repayment of the advances. The statute not only enforces the involuntary service of the laborer because he has contracted a debt with his employer, but it 'enforces his involuntary service because the debt once existed, though it be paid. Thus it falls within the prohibition of the peonage statute and goes beyond it. It is no answer to say the laborer originally entered into the contract of service and contracted the debt voluntarily. The peonage statute is directed against maintaining as well as establishing involuntary servitude in liquidation of any debt or obligation. It is nothing in support of the statute now attacked that it enforces involuntary servitude on account of a debt by the compulsion of a statute providing for indictment and in> prisonmjent for quitting such a service, rather than allowing the employer to compel it under a guard. In contemplation of law, the compulsion to such service by the fear of punishment under a criminal statute is more powerful than any guard which the employer could station.

Finally, we consider whether the statute is opposed to the fourteenth amendment to the Constitution of the United States and Section 5 of Article I of the Constitution of this State as denying to a farm laborer falling under it the equal protection of the laws. We incline to the opinion that a statute not admitting of this objection could be framled, making criminal and punishable by imprisonment a farm laborer’s fraud in obtaining' advances, and a landlord’s fraud in contracting with a laborer, and that it would be no valid objection to such a statute that it did not apply to all persons or even to all laborers and employees.

The Supreme Court of the United States in Connolly v. Pipe Co., 184 U. S., 540, 558, says: “What may be regarded as a denial of equal protection of the laws is a question not always easily determined, as the decisions of this Court and of the highest courts of the States will show. It is sometimes difficult to show that a State enactmlent having its source in a power not controverted, infringes rights protected by the National Constitution. No rule can be formulated that will cover every case. But upon this general question, we have said that the guarantee of the equal pro^tection Of the laws means ‘that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances,’ ” The general rule is familiar that a statute affecting alike all persons of a class is constitutional if the classification be not arbitrary but based upon reasonable grounds. It is thus stated in Barbier v. Connolly, 113 U. S., 27, 32: “Class legislation, discriminating against -some and favoring others, is prohibited, but legislation which, in carrying out a public purpose is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.” The leading authorities on the subject are reviewed in Johnson v. Spartan, Mills, 68 S. C., 339, 47 S. E., 695.

But this legislative discretion is thus limited in Connolly v. Pipe Co., supra: “In prescribing regulations for the corn-duct of trade, it cannot divide those engaged in trade into classes and make criminals of one class, if they do certain forbidden things, while allowing another and favored class engaged in the same domestic trade to do the same things with impunity. It is one thing to' exert the power of taxation so as to meet the expenses of government and at the same time, indirectly, to build up or protect particular interests or industries. It is quite a different thing for the State under its general police powder to enter the domain of trade or commerce, and discriminate against some by declaring that particular classes zvithin its jurisdiction shall be exempt from the operation of a general statute making it criminal to do certain things connected zmth domestic trade or commerce. Such a statute is not a legitimate exertion of the power of classification, rests upon no reasonable basis, is purely arbitrary, and plainly denies the equal protection of the laws to those against whom it discriminates.” In view of the expressions we have italicized, the point is by no means free from difficulty, and there is strong reason to argue a valid statute could not be enacted making farm laborers and landlords liable to imprisonment for fraud in their contracts which did not make all other persons guilty of like fraud in- their contracts, likewise criminally liable. This was the conclusion reached by Judge Brawley, United States- District Judge, in considering the statute now before us (Ex parte Drayton, 153 Fed. 986); and it seems to be the view of Judge Jones of the Federal Court as expressed in the discussion of a similar statute of the State of Alabama. Peonage Cases, 123 Eed., 686.

Whatever doubt there may be on this point, we -should solve in favor of the legislative power of the State, on the ground that under the peculiar conditions of agricultural industry in the State, such classification of agricultural employers and laborers would not be arbitrary, but reasonable. The crop of a Southern planter is pitched early in the year, and constant attention to the end of the season is essential to prevent complete failure and disaster to- the planter. On the other hand, the farm' laborer, the other party to the contract, is usually improvident and more dependent upon his daily earnings than any other class: In every community all of the available labor is usually engaged for the crop season. The farmer makes large expenditures in preparation and in actual cultivation on the faith of the labor contract; and if those whom he engages act in bad faith, in leading him to depend on their labor and make advances to them, with no intention- of rendering the services expected, much loss is incurred. So, also, if the dishonest landlord secures the labor of those he employes, with a fraudulent intent not to pay for their work, a special hardship results in deliberately bringing to want the peculiarly helpless. Hence, it seems not unreasonable for the General Assembly to guard against fraud and enforce honesty in such contracts by special sanctions.

But even if this statute provided punishment only for fraud in such contracts-, it violates the fourteenth amendment to the Constitution of the United States, and Article •I, Section 5, of the State Constitution, in that it does not bear equally on the landlord and the laborer. The parties to a contract are entitled to- equal sanctions of the law for the protection and enforcement of their rights under it. Here ¡the laborer is to be punished for his refusal to perform the service after receiving advances, while no punishment is- provided for the landlord who- may receive in- advance the laborer’s service and refuse to- pay his wages.

In addition to this, there is a patent and arbitrary distinction made between laborers who stand upon precisely the same legal footing. The laborer who- receives advances and refuses to perform the service contracted for is liable to indictment, and the statute makes, no' provision for him to save himself by the repayment of the advances; while the laborer who abandons his contract without having received advances does not fall under the statute. The laborer who receives advances in good faith and pays the debt cannot stand in a -legal -or moral attitude different from that of a laborer who has never received advances; and there is no ground to classify the former as a criminal for abandoning his contract while exempting the latter. Equal protection of the laws embraces the right to equal exemptions. Hence, when the laborer pays back the advances, and thus places himself upon an equal footing with the laborer who has received no advance, he is entitled to the same exemption from punishment.

We have not considered the amendment to the statute passed in 1904 (24 Stat., 428), which provides: “That a conviction- of either party mentioned in Section 355 and Section 357 of the Criminal Code (Vol. II, Code of Laws, 1902), for violation.of such contract as is mentioned in said sections, shall not operate as a release or discharge of such person from the performance of any part of said contract which is to be performed subsequent to the • date of the breach for which such conviction was had: Provided, however, That such person shall not be criminally liable for the non-performance of any obligation due to be performed during the period of time such person may be undergoing imprisonment.” The petition does not show that the petitioner has been twice convicted for abandonment of the service under one contract, and, therefore, the constitutionality of the amendment is not before us.

We conclude that the statute under which the defendant was convicted is invalid because opposed to Sec. 24, Art. I, of the Constitution of the State, to- the thirteenth amend ment to the Constitution of the United States and the act of Congress passed in pursuance thereof known as the peonage statute, and to the fourteenth amendment of the Constitution of the United States and Sec. 5, Art. I, of the Constitution of this State.

It may be in the long run, the welfare of all the people and the development of the negro race in virtue and strength would have been better promoted by laws imposing upon the people of that race, on their emergence from slavery, a degree of restraint and discipline, under rigid laws for their protection. But that question is not for the Court. The constitutions of the United States and of this State, as they are, must control the courts; and the fundamental principle of these constitutions is that the welfare of all the people is promoted by the enjoyment of equal liberty by all alike, and that even if prosperity is not always promoted by constitutional guarantees, liberty is better than prosperity.

The judgment of this Court is, that the petitioner be discharged.

Mr. Chiee Justice Pope and Circuit Judges Watts, Gage, Memminger and Gary concur. Circuit Judge DaNTzeEr concurs in the result. Mr. Justice Gary dissents, on the ground that the constitutionality of the statute is not properly before the Court under habeas corpus proceedings.