not act with the forces at his command in the face of impending or threatening danger, it is just as much an act of the State under the fourteenth amendment as if he had taken part in the lynching himself. Indeed, the nonaction of an officer is as much the act of the State as the direct and positive act of the officer and may be reached under the fourteenth amendment by appropriate legislation by Congress. Were this otherwise, the fourteenth amendment could be nullified in any State by wholesale nonaction of the State or local officers.

These principles readily sustain the constitutionality of the antilynching bill. This bill is expressly limited by its own definitions to official action or nonaction resulting in the denial of due process or the equal protection of the laws. It applies only to persons injured or killed through mob violence on account of race, creed, or color, or with the purpose or consequence of depriving the victim of due process of law or the equal protection of the laws where such person was suspected, accused, or convicted of any crime or offense or in the custody of any peace officer.

In other words, this statute does not seek to reach all cases of assault or murder through violence or all cases in which human rights have been denied or destroyed by public anarchy. It in no sense attempts to set up a Federal criminal code in the several States or to give to the Federal Government a regulatory, supervisory, or concomitant power in connection with the administration of the criminal laws of the State. It deals only with those instances where the personal rights guaranteed to all American citizens by the fourteenth amendment have been invaded by mob violence with the active concurrence or through the nonaction of State or local officers, or where such rights cannot, by reason of local conditions, be properly vindicated in the local courts.

As has already been stated, the fourteenth amendment not only prohibits certain action or nonaction by the several States and public and local officers but also, by necessary implication, confers upon every American citizen and guarantees certain rights which the Congress may protect by all appropriate means in the exercise of plenary police power.

In a proper sphere Congress possesses a Federal police power quite as complete as any police power possessed by the States.

In Hoke v. United States (227 U. S. 308), speaking expressly of the power of Congress over interstate transportation, the Supreme Court said (p. 323):

"The power is complete in itself and Congress, as an incident to it, may adopt not only means necessary but convenient to its exercise and the means may have the quality of police regulations."

In Gibbons v. Ogden (9 Wheat.), Chief Justice Marshall said (p. 202):

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"It is obvious that the Government of the Union in the exercise of its express powers may use means that may also be employed by a State in the exercise of its acknowledged powers."

In Hamilton v. Kentucky Distillers Co. (251 U. S. 146), the Supreme Court said:

"When the United States asserts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power, or that it may tend to accomplish a similar purpose."

Furthermore the reciprocal duty of the States under the fourteenth amendment sustains the constitutionality of the antilynching bill. The fourteenth amendment is as much the law of the separate States as it is of the United States. The individual rights which it confers upon American citizens and guarantees are rights existing under the law of the land and hence are rights which are entitled to recognitition and protection by the law and jurisprudence of the several States.

By ratifying the fourteenth amendment the several States have bound them. selves to perform and discharge the duty of affording to all persons within their respective boundaries the equal protection of the laws, and the Federal Government has guaranteed this performance. The duty to perform is a positive, affirmative duty of equal protection. Wherever this duty is not performed, regardless of the excuse, there is a breach by the State of the contract, and the obligation falls on the guarantor, the Federal Government, to assure performance and to redress whatever wrongs have been suffered by reason of the breach of the guaranty. In the case of private corporations it is well settled that where an obligation rests upon such corporation as a positive duty in favor of third persons the failure of an officer or agent to discharge that duty is actionable, even though the failure may have been merely an incident of wrongful conduct on the part of the officer or agent for which the corporation is in no way responsible as a principal. In other words, the

rule is well established that where misconduct or nonaction of an agent causes a breach of the obligation or contract of a principal, there the principal will be liable in an action, whether such misconduct or nonaction be willful, malicious, or merely negligent; and the form of the action, though undeniably in tort, is treated virtually as an action in contract and governed by the same rule of damages. (See Weed v. Panama R. R. Co., 17 N. U. 362; Rexford v. State, 105 N. Y. 229; Gibney v, State, 137 N. Y. 1; Craker v. The Chicago & Northwestern Ry. Co., 36 Wis. 657670.)

The analogy seems obvious. If State or local officers may in one sense be regarded as acting outside of their employment or authority in not preventing a lynching, nevertheless such conduct may constitute a neglect or default of the part of the State to afford the equal protection of the law. Against such neglect or default Congress is authorized by the fourteenth amendment to adopt all appropriate remedial measures in order to vindicate and protect the rights possessed by all American citizens under that amendment. Such action by Congress is in no way an invasion of State rights but should be welcomed by the States as an additional protection to fundamental privileges which they too are equally bound to guarantee.

So, likewise, the constitutionality of the antilynching bill can be sustained under and by virtue of the power and duty of Congress under the Federal Constitution to guarantee the republican form of government in the several States.

The right to due process of law and the equal protection of the laws are fundamental conceptions of justice and inherent in the very idea of republican or free government. In Powell v. Alabama (287 U. S. 45) the Supreme Court, quoting from its earlier decision in Holden v. Hardy (169 Ú. S. 366, 389) said concerning the right to due process of law and the equal protection of the laws (p. 371): "There are certain immutable principles of justice which are inherent in the very idea of free government which no member of the Union may disregard." In United States v. Cruikshank (92 U. S. 542) the Supreme Court said (p. 555): "The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle if within its power. That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right."

Obviously the substitution of mob rule for free government and the obstruction of the immutable rights of private citizens by mob violence, where the objective or consequence is the overthrow of due process of law or the equal protection of the law is a violation of the right of the injured citizen to enjoy the advantages and privileges of a republican form of government. In the exercise of the police power expressly conferred upon Congress to preserve the republican form of government in the several States and to vindicate the right of the private citizens thereof to enjoy the protection of free government, Congress may enact all appropriate remedial measures and may set up machinery for the enforcement thereof by the Federal courts. Such police measures may, obviously, be both preventative and remedial-may seek to prevent a destruction of constitutional rights by the substitution of mob rule for free government and may provide remedies for wrongs suffered by reason of such substitution.

The provisions in the antilynching bill for penalizing the county where a lynching occurs by a sum to be fixed as liquidated damages is constitutional and thoroughly sustained by judicial authority.

The policy of imposing liability upon a civil subdivision of government is familiar to the common law. A State may, in the exercise of its police power, impose absolute liability upon a city to be collected by an injuried individual (City of Chicago v. Sturges, 222 U. S. 313). In the earliest English statutes there are repeated instances of communities being fined or mulcted in damages for robberies and assaults occurring in their midst, the theory being that the taxpayers would, in consequence, hold their local officials to greater vigilance (Reeves History of English Law, vol. II, p. 340; Coke, 2 Inst. ch. 17, p. 369; 31 N. Y. 189; 62 Ohio State 318, 333, 340).

Moreover, under our theory of law, every citizen is, in a sense, a police officer; and has certain rights and duties in the prevention of crime. The old posse comitatus which made every able-bodied citizen, over the age of 15, subject to impressment by the sheriff to assist in preserving peace, and the power of a citizen to arrest for a felony on view without warrant, are illustrations of the inherent police authority of every citizen. In these modern days these duties have been delegated to hired officers of the law, but the underlying obligation still remains and cannot be violated.

A recent application of these principles in an identical case is to be found in People v. Nelliss (249 Ill. 12). There a statute of Illinois imposed against a county where a lynching occurred the sum of $5,000 as damages recoverable by the victim's heirs. In upholding the validity of this statute the Supreme Court of Illinois said (p. 19):

"It is, we think, too clear for argument that those provisions of said act which provide that persons engaging in mob violence shall be guilty of a felony and subject to imprisonment in the penitentiary will tend to prevent men from joining mobs when assembling and will tend to the suppression of mob violence, and it is, we think, equally clear that the imposing of a liability for damages upon the county or city in favor of the victim of a mob whenever mobs are permitted to assemble, or, in the case of his death, in favor of his widow or heirs or adopted children, will cause the taxpayers of such county or city to discourage the assembling of mobs within such municipalities and will cause all law-abiding men residing in such communities to condemn and denounce mob violence, the result of which must be to create respect for the law and its enforcement and to discourage the assembling of mobs.'

So, likewise, the provisions in the antilynching bill for proceedings in the Federal courts are constitutional. These provisions contemplate that if the United States district court is satisfied, by competent proof, that prosecution of the lynchers cannot be had in the State courts, it may entertain a prosecution of them before itself. The_vindication of Federal rights, both by civil and criminal processes, in the Federal courts is as old as our Constitution. In Virginia v. Rives (100 U. S. 313), the Supreme Court said (p. 318):

Congress by virtue of the fifth section of the fourteenth amendment may enforce the prohibitions wherever 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. Of this there can be no reasonable doubt. Removal of cases from State courts into courts of the United States has been an acknowledged mode of protecting rights ever since the foundation of the Government. Its constitutionality has never been seriously doubted."

In conclusion, we revert to what was said at the beginning of this brief; namely, that lynching no longer can be said to be a matter purely of local or State concern. It has become a grave national menace, injurious to our country's security, its institutions, and its sovereign influence both at home and abroad. Recent decisions by the Supreme Court have established that the Constitution is not a rigid thing, incapable of adaptation to new conditions and dangers, and that it must, from time to time, be interpreted and applied as a living and feasible principle and theory of government, capable of protecting, through plenary police power, its own security and the security and moral and economic welfare of its citizens. It is true that new conditions cannot create new constitutional powers, but new conditions may, through interpretation in the light of new necessities, bring into being new exercises of inherent powers.

Let it not be forgotten that in Hoke v. U. S. (227 U. S. 308), the Supreme Court said (p. 322):

"Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction, as we have said, but it must be kept in mind that we are one people; and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral."

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After giving earnest thought to the consideration of S. 24, the committee has reached the conclusion that as amended the bill is constitutional and should be passed. It is the opinion of the committee that the proposed legislation is "appropriate legislation" to discourage and prevent the evil of lynching wherever in the United States that evil exists or is or may be committed. It is the belief of the committee that the proposed measure does not propose an invasion or subversion of the rights of States. On the contrary, the measure is an aid to the several States in assuring to their citizens the equal protection of the laws, both State and Federal, to which all citizens are entitled.

O

74TH CONGRESS 1st Session

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SENATE

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REPORT No. 344

PROVIDE FOR THE CARRYING AT REDUCED RATES OF OFFICERS AND ENLISTED MEN OF THE MILITARY AND NAVAL FORCES WHILE ON LEAVE OF ABSENCE OR FURLOUGH AT THEIR OWN EXPENSE

MARCH 13 (calendar day, MARCH 19), 1935-Ordered to be printed

Mr. TRAMMELL, from the Committee on Naval Affairs, submitted the following

REPORT

[To accompany S. 95]

The Committee on Naval Affairs of the Senate, to whom was referred the bill (S. 95) to provide for the carrying at reduced rates of officers and enlisted men of the military and naval forces while on leave of absence or furlough at their own expense, having considered the same, report it to the Senate without amendment with the recommendation that the bill do pass.

The purpose of the bill is to permit the railroads to carry the personnel of the military and naval services on leave of absence or furlough at their own expense at reduced rates in order that they may visit their homes and relatives.

This bill would amend paragraph (1) of section 22 of the Interstate Commerce Act, as amended; as under existing law the railroads cannot establish reduced rates for officers and enlisted men without making such rates applicable to the public generally.

The Navy Department desires this permissive legislation with a view of inducing individual railroads to allow reduced rates not only for the benefit of the officers and enlisted men but as well to further the interests of the Navy, Army, and Marine Corps.

The establishment of recruiting and training station in the interior of the United States was for the purpose of getting recruits from the farms and towns of the Middle West where theretofore little interest had been taken in naval matters. If the sailors, marines, and Army men were enabled to visit their homes in the interior more frequently the tendency to desertion should be lessened, the morale of the men would be increased, and the closer contact of parents, relatives, and friends with these young men thereby afforded would foster a more friendly feeling toward naval and military interests by the vast

S. Repts., 74-1, vol. 1-26