said city and district, or the property belonging to said people, and the levying of taxes on said property, or the collection or disbursement of the same for school purposes, or in the disbursement of any fund received or held by the defendants from any source whatever, "and that the said defendants be restrained by an order of this honorable court, and perpetually enjoined, from failing or refusing to disburse all moneys now in the custody or control of the defendants, and all moneys that may be received by them hereafter for the conducting or carrying on schools exclusively for white children, and from disbursing said funds now in their custody, and which may be hereafter received, otherwise than equally among all children residing in said district and city, between the ages of 6 and 20 years, irrespective of race or color of said children." And they further pray that the defendants be further restrained and enjoined from failing or refusing to forthwith levy and collect, under and pursuant to the provisions of said act and the general laws of the commonwealth of Kentucky, a tax upon all property, real and personal, situate in said district, etc., and a capitation tax on all persons residing in said district, and forthwith purchase a suitable lot, and cause the erection thereon of a good and substantial school building for the accommodation of all the children of the African race aforesaid.

This bill has been demurred to by the defendants, "because the matters and things in the bill alleged are not sufficient to constitute a cause of action against them, or either of them, nor can the court, upon the matters and things in the bill alleged, grant the relief prayed for, nor any other relief." It will be seen the purpose of the bill seeks a mandatory injunction, not to enforce the law of February, 1876, but to declare it unconstitutional, and, in effect, applying its provisions to colored children as well as to white children.

The first inquiry under the demurrer is whether or not the court has jurisdiction of the subject-matter therein alleged. By the twelfth subdivision of section 563 of the Revised Statutes it is provided by congress that the district court shall have jurisdiction "of all suits at law or in equity" authorized by law to be brought "by any person to redress the deprivation, under color of any law, ordinance, regulation, custom or usage of any state, of any right, privilege or immunity secured by the constitution of the United States, or of any right secured by any law of the United States to persons within the jurisdiction thereof." And by section 716 the circuit and district courts are given power to issue all writs not specifically provided for by statute "which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law." And by section 1977 it is provided "that all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens; and shall be subject to like punishments, pains, penalties, taxes, licenses, and exactions

of every kind, and to no other." And by section 1979 it is provided that every person "who under color of any statute, ordinance, regulation, custom, or usage of any state or territory, subjects or causes to be subjected any citizen of the United States, or other person within the jurisdiction thereof, to the deprivation of any rights, privileges or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law or suit in equity, or other proper proceeding for redress." The first section of the fourteenth amendment to the constitution of the United States declares 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. No state shall make or enforce any law which shall abridge the privileges or immunities of the 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." These provisions would seem to give the court jurisdiction to determine whether the complainants are denied equal protection of the laws, and whether or not they have been unconstitutionally discriminated against in the matter of the taxes which have been levied under the act of 1876 against the property of the white persons alone, and which have been distributed to the white children of the school age, to the exclusion of the colored children of said district.

We think there can be no doubt that a tax levied for school purposes, whether to provide and maintain common schools, or for what are designated as graded schools, is a public purpose, and the levy of such taxes can only be sustained as an exercise of governmental power. Indeed, the present constitution of Kentucky has declared that "taxes shall be levied and collected for public purposes only. They shall be uniform upon all property subject to taxation within the territorial limits of the authority levying the tax." Section 171.

This court has heretofore had occasion to consider whether a tax levied upon the property of white persons for school purposes, and a similar tax levied upon the property of colored persons for the same purpose, could be separated, and the taxes collected from the property belonging to white persons applied exclusively for the benefit of white children of school age, and the taxes collected from the property of colored persons applied for the benefit of colored children of school age in the same district; and the court decided, after careful consideration (Judge Baxter concurring), that such a division and distribution of taxes thus levied and collected would be a discrimination which is prohibited by the fourteenth amendment to the federal constitution. In that case (Claybrook v. City' of Owensboro), in considering the fourteenth amendment to the federal constitution, the court said:

"Waiving all considerations of the question as to the rights of the complainants as citizens of the United States, we proceed to inquire whether the act of 1871 and its amendments deny to complainants the equal protection of the laws within the meaning of this section. It may be argued that equal

protection of the law does not mean the equal benefit of the laws; that protection in this section does not mean benefit; and that the inequality here is only in the benefits arising from the laws. Perhaps, the best way to test the soundness of this distinction as applied to the laws of the state would be to imagine the distinction a good one, and see where it would lead. Thus, if protection only means equal taxation, and not equal benefits of the taxes when levied and collected for governmental purposes, the state may apply such taxes not only according to color, but also according to the nativity of the citizens. Thus, taxes levied and collected for police purposes, for the administration of justice, or the enforcement of the criminal laws, or, indeed, for any other governmental purpose, may be distributed by the color line, or, as between white people, according to their place of birth, or in proportion as taxes may be paid by each class. If the taxes can be distributed according to the color line or race classification, no reason is perceived why the division may not be made according to the amount paid by each taxpayer, and thus limit the benefits and distribute the protection of the laws by a classification based upon the wealth of the taxpayers. Such a distribution of taxes would entirely ignore the spirit of our republican institutions, and would not be the equal protection of the laws, as understood by any of the states of this Union at the time of the adoption of this amendment. The equal protection of the laws is not possible if taxes levied and collected for governmental purposes are divided on any such basis. The equal protection of the laws guarantied by this amendment must and can only mean that the laws of the state must be equal in their benefits, as well as in their burdens, and that less would not be the equal protection of the laws. This does not mean absolute equality in distributing the benefits of taxation. That is impracticable. But it does mean the distribution of the benefits upon some fair and equal classification or basis."

See Claybrook v. City of Owensboro, 16 Fed. 301, and also another opinion in same case, 23 Fed. 634; U. S. v. Buntin, 10 Fed. 730; San Mateo Co. v. Southern Pac. R. Co., 13 Fed. 722; Virginia v. Rives, 100 U. S. 313; Ward v. Flood, 48 Cal. 51.

In the case under consideration, no tax was either authorized or levied under the act of 1876 on the property of colored people, but this fact makes no difference in the principle which was decided in the case of Claybrook v. City of Owensboro, supra.

It may be questionable whether this act of February, 1876, is not also a violation of the present constitution of Kentucky, which, under the head of "Education" (section 183), declares that "the general assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state," and, by section 187, declares: "In distributing the school fund no distinction shall be made on account of race or color, and separate schools for white and colored children shall be maintained." But this is a question upon which we do not feel called upon to indicate an opinion, as this court can only take jurisdiction of the case if the act of 1876 is in violation of the federal constitution.

Assuming, then, that the act of 1876 is unconstitutional, the inquiry arises, can this court grant any of the relief prayed, to the complainants? The difficulty in granting the relief sought is not that the act is constitutional, but that it is unconstitutional, and thus the taxes which have been levied and collected under it, and are now in the hands of the treasurer of the board, Mr. Skillman, cannot be controlled or directed by an order of this court. The whole purpose of this act seems to be to raise money by taxes upon the

property of white people alone, for the benefit of white children of school age exclusively; hence, if this court, as suggested by counsel, should strike out the word "white" where it occurs in this act, it would change the entire meaning of the act, and destroy its sole purpose. This would be, it seems to us, a usurpation of legislative authority of the state of Kentucky.

If we are correct in the opinion that these taxes have been collected without authority of law, then they belong to the taxpayers from whom they have been collected, and cannot be controlled or disposed of by this court. It is true there are many cases in which courts have declared parts of a law unconstitutional, and other parts constitutional; but this is only when the act can be distinctly separated, and when the parts of the act which are unconstitutional have been eliminated, will still leave an effective enactment, and one which the court can fairly presume would have been passed by the legislature originally.

It is said in Anderson v. Railroad Co., 62 Fed. 49:

"Where the provisions of an act are distinct and separate, and the court can determine by construction the constitutional parts of the act from the parts which are unconstitutional, and can presume the legislature would have enacted the constitutional part of the act without the unconstitutional part, it may declare a part of the act unconstitutional, and the other part enforceable." Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 763.

It is true, in the case of Claybrook v. City of Owensboro there was a proportion of the taxes which had been levied enjoined from being applied for school purposes for white children, but there the tax which had been levied, although by separate acts, was an equal tax upon the property of both white and colored people, and the unconstitutionality of the act consisted in the unequal distribution of the tax levied and collected, in that the division was attempted by the law upon the color line. But here there is no constitutional authority for the levy of the tax at all; hence the court cannot grant to the complainants the relief prayed for. And, for the reasons stated, the demurrer must be sustained; and it is so ordered, and bill dismissed.

OXLEY STAVE CO. v. COOPERS' INTERNATIONAL UNION OF NORTH AMERICA et al.

(Circuit Court, D. Kansas. March 9, 1896.)

No. 7,284.

1. JURISDICTION OF FEDERAL COURTS-ENJOINING BOYCOTT.

In a suit by a Missouri corporation to enjoin certain trades unions or assemblies, and their members, from instituting a boycott, the federal court has no jurisdiction of individual defendants who are citizens of Missouri, nor can the association be sued as a body, or members thereof enjoined who are not parties to the record.

2. CONSPIRACY-UNLAWFULNESS OF BOYCOTT.

A "boycott" by the members of trades unions or assemblies (which term, in law, implies a combination to inaugurate and maintain a general proscription of articles manufactured by the party against whom it is directed) is unlawful, and may be enjoined by a court of equity.

This was a bill in equity by the Oxley Stave Company against the Coopers' International Union of North America, Lodge No. 18, of Kansas City, Kan., the Trades Assembly of Kansas City, Kan., and various individuals named, who are officers and members of such organizations, and also "all other persons who may be members of either of said organizations, their agents, attorneys, etc., to enjoin them from inaugurating and maintaining a boycott against the use of packages, casks, barrels, etc., made by complainant by means of certain machines constituting part of its plant.

Overmeyer & Mulvane, for complainant.

Getty & Hutchings, and Rossington, Smith & Dallas, for defendants.

FOSTER, District Judge. The complainant is a corporation organized under the laws of Missouri, and engaged in the cooperage business at Kansas City, Kan., making barrels, tierces, casks, etc., for packing meat, lard, flour, and other products. The defendants are alleged to be citizens of Kansas. The Coopers' International Union of North America, No. 18, and the Trades Assembly of Kansas City, are voluntary associations, not incorporated. The other defendants are officers and members of said associations. The complainant asks for an injunction against said defendants, restraining and enjoining them from issuing a boycott against the products of its manufactory. It charges "that the defendant associations are composed of a large number of persons, having their lodges and organizations in all of the trade centers of the United States and other countries, and that said associations and the other defendants, the officers of said societies, have combined, confederated, and conspired together to do said complainant a great and irreparable injury, in this, to wit: That complainant has placed in its factory, and is using in its business, machines designed for and used in fitting up and hooping barrels, tierces, casks, etc.; that none of the employés of said complainant are in said conspiracy, or make any objections to complainant's use of said machines, or have any grievances against said complainant whatever; that said defendants have so combined, confederated, and conspired together to demand, and have demanded, of this complainant, that it shall discontinue the use of such machines in its plant, and in the manufacture of barrels, on and after the 18th day of January, 1896; and that, upon the refusal of said complainant to so discontinue the use of said machines as aforesaid, they, the said defendants, will cause a boycott to be placed on all pack. ages, casks, barrels, tierces, etc., hooped by said machines, and against the trade and business of complainant." The bill further alleges, at great length, what action has been taken by defendants in pursuance of said combination and conspiracy to make the boycott effective; "that said associations passed resolutions, and appointed committees to wait upon this complainant, and demanded that it discontinue the use of said machines, under the penalty of a boycott in case of refusal, and other committees were ap