"If any officer or other person charged with any duty in the selection or summoning of jurors, shall exclude, or fail to summon, any citizen in the case aforesaid, he shall, on conviction, be guilty of misdemeanor and be fined not more than five hundred dollars."
In the case known as Ex-parte vs. Virginia—found in 100 U. S. 339—it was held that an indictment against a State officer, under this section, for excluding persons of color from the jury, could be sustained. Now, let it be remembered, there was no law of the State of Virginia, by virtue of which a man was disqualified from sitting on the jury by reason of race or color. The officer did exclude, and did fail to summon, a citizen on account of race or color or previous condition of servitude. And the Supreme Court held:
"That whether the Statute-book of the State actually laid down any such rule of disqualification or not, the State, through its officer, enforced such rule; and that it was against such State action, through its officers and agents, that the last clause of the section was directed."
The Court further held that:
"This aspect of the law was deemed sufficient to divest it of any unconstitutional character."
In other words, the Supreme Court held that the officer was an agent of the State, although acting contrary to the statute of the State; and that, consequently, such officer, acting outside of law, was amenable to the Civil Rights Act, under the 14th Amendment, that referred only to States. The question arises: Is a State responsible for the action of its agent when acting contrary to law? In other words: Is the principal bound by the acts of his agent, that act not being within the scope of his authority? Is a State liable—or is the Government liable—for the act of any officer, that act not being authorized by law?
It has been decided a thousand times, that a State is not liable for the torts and trespasses of its officers. How then can the agent, acting outside of his authority, be prosecuted under a law deriving its entire validity from a constitutional amendment applying only to States? Does an officer, by acting contrary to State law, become so like a State that the word State, used in the Constitution, includes him?
So it was held in the case of Neal vs. Delaware,—103 U. S., 307,—that an officer acting contrary to the laws of the State—in defiance of those laws—would be amenable to the Civil Rights Act, passed under an amendment to the Constitution now held applicable only to States.
It is admitted, and expressly decided in the case of The U. S. vs. Reese et al., (already quoted) that when the wrongful refusal at an election is because of race, color, or previous condition of servitude, Congress can interfere and provide for the punishment of any individual guilty of such refusal, no matter whether such individual acted under or against the authority of the State.
With this statement I most heartily agree. I agree that: