BUSH v. COM. OF KENTUCKY , 107 U.S. 110 (1880)

It is sufficient for this assignment to say that the motion was properly overruled, for the reason, among others, that the grounds upon which it was rested do not clearly and distinctly show that the officers who selected and summoned the petit jurors excluded from the panel qualified citizens of African descent because of their race or color. It may have been true that only white citizens were selected and summoned, yet it would not necessarily follow that the officer had violated the law and the special instruction given by the court 'to proceed in his selection without regard to race, color, or previous condition of servitude.' There was no legal right in the accused to a jury composed in part of his own race. All that he could rightfully demand was a jury from which his race was not excluded because of their color. Virginia v. Rives, 100 U.S. 323 . The allegation that colored citizens were excluded, and that only white citizens were selected, was too vague and indefinite to constitute the basis of an inquiry by the court whether the sheriff had not disobeyed its order by selecting and summoning petit jurors with an intent to discriminate against the race of the accused. This motion was, therefore, properly overruled.

4. But the most important question raised by the assignments of error is that which relates to the overruling of the motion made before the trial to set aside the indictment because found by a grand jury selected and formed upon the basis of excluding therefrom, because of their color, all citizens of the African race resident in Fayette county and eligible for such service. In several cases heretofore decided in this court we have had [107 U.S. 110, 118]   occasion to consider the general question whether the fourteenth amendment, and the laws passed by congress for the enforcement of its provisions, do not prohibit any discrimination, in the selection of grand and petit jurors, against citizens of African descent because of their race or color.

In Neal v. Delaware, 103 U.S. 386 , we said-commenting upon Strauder v. West Virginia, Virginia v. Rives, and Ex parte Virginia, 100 U.S. 303, 313 , 319 S.-that a denial to citizens of African descent, because of their race, of the right or privilege accorded to white citizens, of participating as jurors in the administration of justice, is a discrimination against the former inconsistent with the amendment, and within the power of congress, by appropriate legislation, to prevent; that to compel a colored man to submit to a trial before a jury drawn from a panel from which is excluded, because of their color, every man of his race, however well qualified by education and character to discharge the functions of jurors, is a denial of the equal protection of the laws; and that such exclusion of the black race from juries, because of their color, is not less forbidden by law than would be the exclusion from juries, in the states where the blacks have the majority, of the white race, because of their color. It was also said in that case that 'the presumption should be indulged, in the first instance, that the state recognizes, as is its plain duty, an amendment of the federal constitution, from the time of its adoption, as binding on all of its citizens and every department of its government, and to be enforced within its limits, without reference to any inconsistent provisions in its own constitution or statutes.' 103 U.S. 389 . But it was further said:

'Had the state, since the adoption of the fourteenth amendment, passed any statute in conflict with its provisions, or with the laws enacted for their enforcement; or had its judicial tribunals, by their decisions, repudiated that amendment as a part of the supreme law of the land, or declared the acts passed to enforce its provisions to be inoperative and void,-there would have been just ground to hold that there was such a denial, upon its part, of equal civil rights, or such an inability to enforce them in those tribunals, as, under the constitution and within the meaning [107 U.S. 110, 119]   of that [section 641, Rev. St.] section, would authorize a removal of the suit or prosecution into the circuit court of the United States.' 103 U.S. 392 .

Again, it was declared that a denial upon the part of the officers of the state, charged with duties in that regard, of the right of a colored man 'to a selection of grand and petit jurors without discrimination against his race, because of their race, would be a violation of the constitution and laws of the United States, which the trial court was bound to redress. As said by us in Virginia v. Rives, 'the court will correct the wrong, will quash the indictment or the panel; or, if not, the error will be corrected in a superior court, and ultimately in this court upon review." 103 U.S. 394 .

Guided by these principles, we proceed to inquire whether there was anything in the action of the state, by means of legislation or otherwise, subsequent to the adoption of the fourteenth amendment, that requires us to hold, as matter of law, that in the selection and formation of the grand jury which returned the last indictment, there was such a discrimination against the plaintiff in error because of his race as made it the duty of the court to sustain the motion to set aside that indictment.

By the Revised Statutes of Kentucky, which went into effect on the first day of July, 1852, and were in force when the fourteenth amendment became a part of the national constitution, no one was competent to serve as a petit juror who was not 'a free white citizen,'-2 Rev. St. Ky. ( Stanton's Ed.) 77;-and none except citizens could serve on a grand jury,-2 Rev. St. Ky. (Stanton's Ed.) 75, 77. By the same statutes it was provided that all free white persons born in Kentucky or in any other state of the Union, residing in that state, all free white persons naturalized under the laws of the United States residing there, and all persons who have obtained a right to citizenship under former laws, and every child, wherever born, whose father or mother was or shall be a citizen of Kentucky at the birth of such child, shall be deemed citizens of that state. 1 Rev. St. Ky. (Stanton's Ed.) 238. So that, by the law of Kentucky at the adoption of the fourteenth amendment, no citizen of the African race was competent to serve as a grand juror. [107 U.S. 110, 120]   The Revised Statutes of Kentucky were superseded (certainly as to the selection of grand and petit jurors) by the General Statutes, which were formally enacted as the law of the state, and went into effect on the first day of December, 1873. These-while declaring, in conformity with the fourteenth amendment, all persons born or naturalized in the United States and subject to the jurisdiction thereof, if residing in Kentucky, to be citizens of that state-re-enacted the disqualification of colored persons as petit jurors, and also provided that 'no person shall be qualified as a grand juryman unless he be a white citizen.' Gen. St. Ky. 570. And in the new Criminal Code of Practice of Kentucky, which went into effect January 1, 1877, it is expressly provided that 'the selecting, summoning, and impaneling of a grand jury shall be as prescribed in the General Statutes.' Section 101.

It thus appears that the legislature of Kentucky, after the adoption of the fourteenth amendment and notwithstanding the explicit declaration therein that 'no state shall deny to any person within its jurisdiction the equal protection of the laws,' twice expressly enacted that no citizen of the African race should be competent to serve either as a grand or petit juror. And these re-enactments of the prior laws excluding citizens of that race from service on grand or petit juries remained unchanged by legislation in that commonwealth until the passage of the act approved January 26, 1882, whereby the word 'white' was stricken out of the sections of the General Statutes prescribing the qualifications of grand and petit jurymen. In this connection it is necessary to recur to the case of Com. v. Johnson, determined, as we have seen, in the court of appeals of Kentucky on the twenty-ninth of June, 1880. In that case it was held, upon the authority of Strauder v. West Virginia, 100 U.S. 303 , (decided on the first day of March, 1880,) that so much of the statute of Kentucky 'as excludes all persons other than white men from service on juries is unconstitutional, and that no person can be lawfully excluded from any jury on account of his race or color.' The learned court then proceeded:

'This question has not been heretofore passed on by this court, and as the duty of selecting [107 U.S. 110, 121]   and summoning juries is devolved upon merely ministerial officers, we ought to assume that, in performing their duties, they obeyed the statute as enacted by the legislature, and that they excluded colored persons from the jury because the statute declares them to be incompetent, and consequently that the appellee was deprived by the statute of a right which the supreme court holds is secured to him by the constitution.

'But the word 'white,' as found in our jury laws, being now declared to be no part of that law, it will be incumbent on all officers charged with the duty of selecting or summoning jurors, to make their selections without regard to race or color; and when juries are hereafter selected and summoned, it ought to be presumed that the officers did their duty, and ignored the statute so far as it is herein held to be unconstitutional, and that they have not excluded any person from the jury on account of his race or color.' 78 Ky. 511.

The indictment upon which the plaintiff in error has been tried, convicted, and sentenced to suffer death, was returned by a grand jury selected by jury commissioners who were appointed by the state court of original jurisdiction at its May term, 1880. It was therefore found by grand jurors who were selected prior to the decision in Com v. Johnson. The names of the grand jurors so selected were reported to the court at that term as the grand jury for the succeeding term, at which the indictment upon which Bush was tried was returned. So that the grand jurors who found the indictment were selected when statutes of Kentucky, re-enacted after the adoption of the fourteenth amendment, expressly restricted jury commissioners in their selection of grand jurors to white citizens. Further, they were selected at a time when, according to the rule announced by the highest court of Kentucky, it should be assumed that the officers charged with the duty of selecting grand jurors obeyed the local statute by excluding from the list, because of their race, all citizens of African descent.

These considerations bring the case within the principles announced in Neal v. Delaware. The presumption that the state recognized the fourteenth amendment from the date of its adoption to be binding on all its citizens and every department [107 U.S. 110, 122]   of its government, and to be enforced within its limits without reference to any inconsistent provisions in its own constitution and laws, is overthrown by the fact that twice after the ratification of that amendment the state enacted laws which in terms excluded citizens of African descent, because of their race, from service on grand and petit juries. It was not until after the grand jurors who returned the indictment against Bush had been selected, that the highest court of Kentucky, speaking with authority for all the judicial tribunals of that commonwealth, declared that the local statutes, in so far as they excluded colored citizens from grand and petit juries because of their race, were in conflict with the national constitution.

But upon this branch of the case the argument by counsel for the commonwealth of Kentucky is that the record does not show, by a bill of exceptions or otherwise, that any proof whatever was offered in support of the motion to set aside the indictment; and, consequently, that in disposing of that motion, as presenting simply a question of law arising upon the face of the local statutes, the presumption is that the jury commissioners in their selection, at May term, 1880, of the Fayette circuit court, of grand jurors for the succeeding term, respected the decision in Strauder v. West Virginia and similar cases, and therefore disregarded the statutes of Kentucky. The force of this position would be greatly strengthened if the record furnished any evidence that the court gave to those commissioners such instructions as were given to the sheriff in May, 1881, when that officer was required to select and summon petit jurors for the trial of Bush. We are of opinion that the rule announced by the court of appeals in Com. v. Johnson is consistent with sound reason and public policy; and, in conformity therewith,-in the absence of any evidence that the selection of grand jurors in May, 1880, was in fact made without discrimination against colored citizens, because of their race,-it should be assumed that the jury commissioners then appointed followed the statutes of Kentucky so far as they restricted the selections of grand jurors to citizens of the white race.

For these reasons it is adjudged that the court of original [107 U.S. 110, 123]   jurisdiction erred in overruling the motion to set aside the indictment; and, consequently, that the court of appeals of Kentucky erred in affirming its judgment.

The judgment of the court of appeals of Kentucky is reversed, and the cause remanded to that court, to be thence remanded to the Fayette circuit court, with directions to set aside the indictment.

FIELD, J., adheres to the views expressed by him in his dissenting opinions in Ex parte Virginia, 100 U.S. 349 , and in Neal v. Delaware, 103 U.S. 398 ; and therefore dissents from the judgment in this case.

WAITE, C. J., dissenting, with whom concurred GRAY, J.

I am unable to concur in this judgment. In my opinion it is not to be presumed that the courts or the officers of Kentucky neglected or refused to follow the rulings in Strauder v. West Virginia after the judgment in that case was pronounced by this court. The court of appeals promptly recognized the authority of that case, and, in the absence of any proof to the contrary, it seems to me we must assume the inferior courts also did.