On the principle that the law may hit the evil where it is most felt, State Antitrust Laws applicable to corporations but not to individuals,[1142] or to vendors of commodities but not to vendors of labor,[1143] have been upheld. Contrary to its earlier view, the Court now holds that an Antitrust Act which exempts agricultural products in the hands of the producer is valid.[1144] Diversity with respect to penalties also has been sustained. Corporations violating the law may be proceeded against by bill in equity, while individuals are indicted and tried.[1145] A provision, superimposed upon the general Antitrust Law, for revocation of the licenses of fire insurance companies which enter into illegal combinations, does not violate the equal protection clause.[1146] A grant of monopoly privileges, if otherwise an appropriate exercise of the police power, is immune to attack under that clause.[1147]
Punishment for Crime
Equality of protection under the law implies that in the administration of criminal justice no person shall be subject to any greater or different punishment than another in similar circumstances.[1148] Comparative gravity of criminal offenses is a matter for the State to determine, and the fact that some offenses are punished with less severity than others does not deny equal protection.[1149] Heavier penalties may be imposed upon habitual criminals for like offenses,[1150] even after a pardon for an earlier offense,[1151] and such persons may be made ineligible for parole.[1152] A State law doubling the sentence on prisoners attempting to escape does not deny equal protection in subjecting prisoners who attempt to escape together to different sentences depending on their original sentences.[1153] Infliction of the death penalty for assaults with intent to kill by life term convicts is not unconstitutional because not applicable to convicts serving lesser terms.[1154] The Fourteenth Amendment does not preclude the commitment of persons who, by an habitual course of misconduct, have evidenced utter lack of power to control sexual impulses, and are likely to inflict injury.[1155] A statute prohibiting a white person and a Negro from living together in adultery or fornication is not invalid because it prescribes penalties more severe than those to which the parties would be subject were they both of the same race.[1156] The equal protection clause does not prevent the execution of a prisoner after the accidental failure of the first attempt.[1157] It does, however, render invalid a statute requiring sterilization of persons convicted of various offenses, including larceny by fraud, but exempting embezzlers.[1158]
Segregation
Laws designed to segregate persons of different races in the location of their homes, in the public schools and on public conveyances have been a prolific source of litigation under the equal protection clause. An ordinance intended to segregate the homes of white and colored races is invalid.[1159] Private covenants forbidding the transfer of real property to persons of a certain race or color have been held lawful,[1160] but the enforcement of such agreements by a State through its courts would constitute a denial of equal protection of the laws.[1161] A statute providing for separate but equal accommodations on railroads for white and colored persons has been held not to deny equal protection of the law,[1162] but a separate coach law which permits carriers to provide sleeping and dining cars only for white persons, is invalid notwithstanding recognition by the legislature that there would be little demand for them by colored persons.[1163] Fifty years ago the action of a local board of education in suspending temporarily for economic reasons a high school for colored children was held not to be a sufficient reason for restraining the board from maintaining an existing high school for white children, when the evidence did not indicate that the board had proceeded in bad faith or had acted in hostility to the colored race.[1164] A child of Chinese ancestry, who is a citizen of the United States, is not denied equal protection of law by being assigned to a public school provided for colored children, when equal facilities for education are offered to both races.[1165]
Although the principle that separate but equal facilities satisfy constitutional requirements has not been reversed, the Court in recent years has been inclined to review more critically the facts of cases brought before it to ascertain whether equality has, in fact, been offered. In Missouri v. Canada[1166] it held that the State was denying equal protection of the law in failing to provide a legal education within the State for Negroes comparable to that afforded white students. Pursuant to a policy of segregating Negro and white students, the State had established a law school at the State university for white applicants. In lieu of setting up one at its Negro university, it authorized the curators thereof to establish such a school whenever in their opinion it should be necessary and practicable to do so, and pending such development, to arrange and pay for the legal education of the State's Negroes at schools in other States. This was found insufficient; the obligation of the State to afford the protection of equal law can be performed only where its laws operate, that is to say, within its own jurisdiction. It is there that equality of rights must be maintained. In a later case the Court held that the State of Oklahoma was obliged to provide legal education for a qualified Negro applicant as soon as it did for applicants of any other group.[1167] To comply with this mandate a State court entered an order requiring in the alternative the admission of a Negro to the state-maintained law school or non-enrollment of any other applicant until a separate school with equal educational facilities should be provided for Negroes. Over the objection of two Justices the Supreme Court held this order did not depart from its mandate.[1168] After a close examination of the facts, the Court concluded, in Sweatt v. Painter,[1169] that the legal education offered in a separate law school for Negroes was inferior to that afforded by the University of Texas Law School and hence that the equal protection clause required that a qualified applicant be admitted to the latter. In McLaurin v. Oklahoma State Regents[1170] the Court held that enforced segregation of a Negro student admitted to a State university was invalid because it handicapped him in the pursuit of effective graduate instruction.
In conjunction with the Fifteenth Amendment the equal protection clause has played an important role in cases involving various expedients devised to deprive Negro citizens of the right of suffrage. Attempts have also been made, but thus far without success, to invoke this clause against other forms of political inequality. The principal devices employed to prevent voting by Negroes have been grandfather clauses, educational qualifications, registration requirements and restrictions on membership in a political party. Grandfather clauses exempting persons qualified as electors before 1866 and their descendants from requirements applicable to other voters, were held to violate the Fifteenth Amendment.[1171] Educational qualifications which did not on their face discriminate between white and Negro voters were sustained in the absence of a showing that their actual administration was evil.[1172] In 1903 in a suit charging that the registration procedure prescribed by statute was fraudulently designed to prevent Negroes from voting, the Court, in an opinion written by Justice Holmes, refused to order the registration of an allegedly qualified Negro, on the whimsical ground that to do so would make the Court a party to the fraudulent plan.[1173] The opinion was careful to state that "we are not prepared to say that an action at law could not be maintained on the facts alleged in the bill." Such an action was brought some years later in Oklahoma under a registration law enacted after its "grandfather" statute had been held unconstitutional. Registration was not necessary for persons who had voted at the previous election under the invalid statute. Other persons were required to register during a twelve day period or be forever disfranchised. A colored citizen who was refused the right to vote in 1934 because of failure to register during the prescribed period in 1916, was held to have a cause of action for damages against the election officials under the Civil Rights Act of 1871. In the opinion of the Court reversing a judgment for the defendants, Justice Frankfurter said:[1174] "The Amendment nullifies sophisticated as well as simple minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race."
As the selection of candidates by primary elections became general, the denial of the right to vote in the primary assumed dominant importance. For many years the Court hesitated to hold that party primaries were elections within the purview of the Constitution. During that period the equal protection clause was relied upon to invalidate discrimination against Negroes. Under the clause, it is necessary to find that inequality is perpetrated by the State.[1175] The Court had no difficulty in holding that a State statute which forbade voting by Negroes in a party primary was obnoxious to the Fourteenth Amendment.[1176] The same conclusion was reached with respect to exclusion by action of a party executive committee pursuant to authority conferred by statute.[1177] But at first it refused to extend this rule to a restriction on membership imposed without statutory authority by the State convention of a party.[1178] The latter case was soon overruled; having, in the meanwhile, decided that a primary is an integral part of the electoral machinery,[1179] the Court ruled in Smith v. Allwright,[1180] that a restriction on party membership imposed by a State convention was invalid under the Fifteenth Amendment, where such membership was a prerequisite for voting in the primary.