Barr D. J.
The petition in this case alleges that the plaintiffs are colored people of African descent, residents and citizens of this state and citizens of the United States, and the defendant is a corporation [341]*341chartered by this state, owning and operating a railroad running from Lexington to Covington; that the plaintiff, Belle M. Smoot, who is the wife of the plaintiff, Edward J. Smoot, purchased in September, 1881, at Baris, Kentucky, of defendant a first-class ticket on its train from Paris to Lexington. It is alleged that she with said ticket boarded a regular passenger train of defendant’s, which was running from Covington through Paris to Lexington, arid sought to go into the ladies’ car, which was reserved for the use of ladies and -the gentlemen accompanying them, but that she was refused admission into said car by defendant’s agents, because and only because she was colored and of African descent, and was requested to go into the car which was reserved for gentlemen, and that this car was inferior to that reserved for white ladies. It is' for this alleged discrimination that she refused to go into this car, and persisted upon going into the same car with other ladies, and because of this was put off the train between stations by defendant’s conductor; and for this they seek the recovery of damages. The suit is brought under the civil-rights act, approved March 1, 1875, (Supp. Bev. St. 148.) The petition has been demurred to, and it is now insisted (1) that as this is a suit for the recovery of civil damages, it is not within the terms of that act, and this court has no jurisdiction; (2) if within tho terms of that act, this court has no jurisdiction, because it is not within the constitutional powers of congress to give it, as between citizens of the same state.
The third section of this act provides “that the district and circuit courts of the United States shall have, exclusively of the courts of the several states, cognizance of all crimes and offenses against and violations of the provisions of this act.” But there are other provisions of the act which raise a serious doubt whether “violations of the provisions of this act” include civil actions for damages.
It is, however, not necessary to decide this question, because if congress has the constitutional right to give this court jurisdiction of this action, it has done so in the judiciary act approved March 3, 1875, which gives circuit courts jurisdiction of “all suits of a civil nature at common law or in equity when the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and arises under the constitution or laws of the United States.” If, therefore, this case arises under the constitution, or laws of the United States made in pursuance thereof, this court has jurisdiction. The material question is, has congress the constitutional right to give this court [342]*342jurisdiction because of the subject-matter, as alleged in this petition? The first section of the civil-rights act provides—
“That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusements, subject only to the conditions and limitations established • by law and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.” Supp. Rev. St. § 148.
The authority for this enactment is based upon the first section of the fourteenth amendment to the constitution, which is in these words:
“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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. 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.”
The fifth section gives congress the “power to enforce by appropriate legislation” this and the other provisions of the amendment. There is no allegation in the petition that there is any law of the state of Kentucky which authorized the defendant to make any discrimination in the treatment or accommodation of its passengers on account of their race or color. There is no such law known to me, and I do not know of anything in the laws of Kentucky which would prevent plaintiff from recovering for the wrong complained of if the facts are as alleged. The defendant had no right under its charter to give plaintiff, if in fact it did give, accommodations on its trains which were inferior to those given white persons because of her race and color; and if she refused to accept such inferior accommodations, and was in consequence put off the train, she is, I think, entitled upon common-law principles to recover damages. But is not that fact a reason, if there was none other, why plaintiffs cannot come into this court with their action ? In other words, can congress give this court jurisdiction over this subject, and between citizens of the same state, unless Kentucky has, by it laws or through its officers or agencies, denied to plaintiff the equal protection of the laws, or abridged her “privileges or immunities” as a citizen of the United States ?
We will not determine whether the right to travel over railroads in public cars, without discrimination on account of race or color, is [343]*343a privilege pertaining to national citizenship. But assuming that the right to travel to and from the capítol of the nation, to and from post-offices, revenue offices, and United States courts, is a privilege pertaining to national citizenship, and that this includes the right to travel in the usual public conveyances without discrimination because of the citizen’s race' or color, still, the inquiry remains, has this privilege been abridged by the state or its agencies? Crandall v. Nevada, 6 Wall. 35.
The fourteenth and the other amendments are limitations upon the power of the states, and to some extent an enlargement of the powers of congress. But the enlargement of the powers of congress are for the purpose and to the extent only of enforcing the limitations placed upon the power of the state. If, therefore, a state has not attempted by its laws, officers, or agencies to overstep these limitations, no case arises for the exercise of the protecting and guaranteeing, power of the national government.
The declaration that “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,” does not of itself, I think, give congress the power to declare that the federal courts shall have, exclusively of or concurrently with the state courts, original jurisdiction to protect the rights of national and state citizenship. If this had been the intention, the subsequent inhibitions upon the state would have been entirely unnecessary.
The supreme courts, prior to this declaration, had decided that citizenship of a person born in the United States could only come through a state, and that a person of African descent, though bom in one of the United States, could never become a citizen of that state. Dred Scott v. Sandford, 19 How. 393.
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Barr D. J.
The petition in this case alleges that the plaintiffs are colored people of African descent, residents and citizens of this state and citizens of the United States, and the defendant is a corporation [341]*341chartered by this state, owning and operating a railroad running from Lexington to Covington; that the plaintiff, Belle M. Smoot, who is the wife of the plaintiff, Edward J. Smoot, purchased in September, 1881, at Baris, Kentucky, of defendant a first-class ticket on its train from Paris to Lexington. It is alleged that she with said ticket boarded a regular passenger train of defendant’s, which was running from Covington through Paris to Lexington, arid sought to go into the ladies’ car, which was reserved for the use of ladies and -the gentlemen accompanying them, but that she was refused admission into said car by defendant’s agents, because and only because she was colored and of African descent, and was requested to go into the car which was reserved for gentlemen, and that this car was inferior to that reserved for white ladies. It is' for this alleged discrimination that she refused to go into this car, and persisted upon going into the same car with other ladies, and because of this was put off the train between stations by defendant’s conductor; and for this they seek the recovery of damages. The suit is brought under the civil-rights act, approved March 1, 1875, (Supp. Bev. St. 148.) The petition has been demurred to, and it is now insisted (1) that as this is a suit for the recovery of civil damages, it is not within the terms of that act, and this court has no jurisdiction; (2) if within tho terms of that act, this court has no jurisdiction, because it is not within the constitutional powers of congress to give it, as between citizens of the same state.
The third section of this act provides “that the district and circuit courts of the United States shall have, exclusively of the courts of the several states, cognizance of all crimes and offenses against and violations of the provisions of this act.” But there are other provisions of the act which raise a serious doubt whether “violations of the provisions of this act” include civil actions for damages.
It is, however, not necessary to decide this question, because if congress has the constitutional right to give this court jurisdiction of this action, it has done so in the judiciary act approved March 3, 1875, which gives circuit courts jurisdiction of “all suits of a civil nature at common law or in equity when the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and arises under the constitution or laws of the United States.” If, therefore, this case arises under the constitution, or laws of the United States made in pursuance thereof, this court has jurisdiction. The material question is, has congress the constitutional right to give this court [342]*342jurisdiction because of the subject-matter, as alleged in this petition? The first section of the civil-rights act provides—
“That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusements, subject only to the conditions and limitations established • by law and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.” Supp. Rev. St. § 148.
The authority for this enactment is based upon the first section of the fourteenth amendment to the constitution, which is in these words:
“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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. 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.”
The fifth section gives congress the “power to enforce by appropriate legislation” this and the other provisions of the amendment. There is no allegation in the petition that there is any law of the state of Kentucky which authorized the defendant to make any discrimination in the treatment or accommodation of its passengers on account of their race or color. There is no such law known to me, and I do not know of anything in the laws of Kentucky which would prevent plaintiff from recovering for the wrong complained of if the facts are as alleged. The defendant had no right under its charter to give plaintiff, if in fact it did give, accommodations on its trains which were inferior to those given white persons because of her race and color; and if she refused to accept such inferior accommodations, and was in consequence put off the train, she is, I think, entitled upon common-law principles to recover damages. But is not that fact a reason, if there was none other, why plaintiffs cannot come into this court with their action ? In other words, can congress give this court jurisdiction over this subject, and between citizens of the same state, unless Kentucky has, by it laws or through its officers or agencies, denied to plaintiff the equal protection of the laws, or abridged her “privileges or immunities” as a citizen of the United States ?
We will not determine whether the right to travel over railroads in public cars, without discrimination on account of race or color, is [343]*343a privilege pertaining to national citizenship. But assuming that the right to travel to and from the capítol of the nation, to and from post-offices, revenue offices, and United States courts, is a privilege pertaining to national citizenship, and that this includes the right to travel in the usual public conveyances without discrimination because of the citizen’s race' or color, still, the inquiry remains, has this privilege been abridged by the state or its agencies? Crandall v. Nevada, 6 Wall. 35.
The fourteenth and the other amendments are limitations upon the power of the states, and to some extent an enlargement of the powers of congress. But the enlargement of the powers of congress are for the purpose and to the extent only of enforcing the limitations placed upon the power of the state. If, therefore, a state has not attempted by its laws, officers, or agencies to overstep these limitations, no case arises for the exercise of the protecting and guaranteeing, power of the national government.
The declaration that “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,” does not of itself, I think, give congress the power to declare that the federal courts shall have, exclusively of or concurrently with the state courts, original jurisdiction to protect the rights of national and state citizenship. If this had been the intention, the subsequent inhibitions upon the state would have been entirely unnecessary.
The supreme courts, prior to this declaration, had decided that citizenship of a person born in the United States could only come through a state, and that a person of African descent, though bom in one of the United States, could never become a citizen of that state. Dred Scott v. Sandford, 19 How. 393. This declaration in the amendment changed this, and by a broad declaration made all persons, whatever their race, color, or previous condition, born in the United States, and subject to its jurisdiction, citizens of the United States, and of the state whereof they reside. Slaughter-house Gases, 16 Wall. 67. But this declaration did not of itself give congress the power to protect by legislation the rights pertaining to state or national citizenship. The power of congress to protect the national citizen in his privileges and immunities, and all persons in certain fundamental rights, is given in the subsequent part of the clause, and this protection is from the action of the states, or its agencies, and not from the acts of individuals, unless individuals act by or through state authority. Ex parte Virginia, 100 U. S. 339.
[344]*344If the mere declaration of citizenship gives the power to congress, under the fifth section of this amendment, to protect from the acts of individuals the rights pertaining to the citizenship therein declared, this power must extend to protecting the rights pertaining to state as well as national citizenship, as there is no distinction in the declaration of citizenship.
I conclude, therefore, as there is no allegation in the petition that the state of Kentucky has denied the plaintiff the equal protection of its laws, or made or enforced any law which abridges her privileges or immunities as a citizen of the United States, nor is there, in fact, any such law or denial of protection known to me, the all-important jurisdictional fact to give this court jurisdiction is wanting, and the demurrer must be sustained and petition dismissed.
If I am mistaken in the Kentucky law, and the courts of the state shall sustain as legal this discrimination on account of race and color, the plaintiff and others of like condition are not without remedy, but may have the question passed upon by the supreme court. Virginia v. Rives, 100 U. S. 313; Heal v. Delaware, 103 U. S. 370.
Note. Where a state has been guilty of no violation of the provisions of the thirteenth, fourteenth, and fifteenth amendments to the constitution of the United States, no power is conferred on congress to punish private individuals, who, acting without any authority from the state, and it may be in defiance of law, invade the rights of the citizen which are protected by such amendments. So, where an act of congress is directed exclusively against the action of individuals, and not of the states, the law is broader than the amendments by which it is attempted to be justified, and is without constitutional warrant. Le Grand v. U. S.12 Fed. Rep. 577, (opinion by Mr. Justice Woods,) and the elaborate note by Mr. Besty. Congress had no power under the fourteenth amendment to protect the right “ to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of theaters and inns ” against violation by individuals acting in their private capacity, and to that extent the civil-rights act of March 1,1875, is unconstitutional. Charge to grand jury by Judge Emmons, (May, 1875, U. S. C. C., W. D. Tenn.,) 2 Am. L. T. Rep. (N. S.) 198. Contra, U. S. v. Newcomer, (U. S. D. C., E. D. Pa., Feb. 1876,) 22 Int. Rev. Rec. 115, Cadwallader, J. The same question was before Judges Blatehford and Choate, and they divided and certified it to the supreme court. U. S. v. Singleton, 1 Crim. Law Mag. 386. Eor a further discussion of this subject, see Cooley, Torts, 284-6, and note to U. S. v. Buntin, 10 Fed. Rep. 736.—[Rep.