private means, strong and explicit as the direction of the constitution is, it would afford no remedy or redress to the thousands of the rising generation, who now depend on these schools to afford them a most valuable education, and an introduction to useful life.

We must then resort to the law, to ascertain what are the rights of individuals, in regard to the schools. By the Rev. Sts. c. 23, the general system is provided for. This chapter directs what money shall be raised in different towns, according to their population; provides for a power of dividing towns into school districts, leaving it however at the option of the inhabitants to divide the towns into districts, or to administer the system and provide schools, without such division. The latter course has, it is believed, been constantly adopted in Boston, without forming the territory into districts.

The statute, after directing what length of time schools shall be kept in towns of different numbers of inhabitants and families, provides (§ 10) that the inhabitants shall annually choose, by ballot, a school committee, who shall have the general charge and superintendance of all the public schools in such towns. There being no specific direction how schools shall be organized; how many schools shall be kept; what shall be the qualifications for admission to the schools; the age at which children may enter; the age to which they may continue; these must all be regulated by the committee, under their power of general superintendence.

There is, indeed, a provision (§§ 5 and 6,) that towns may and in some cases must provide a high school and classical school, for the benefit of all the inhabitants. It is obvious how this clause was introduced; it was to distinguish such classical and high schools, in town districted, from the district schools. These schools being a higher character, and designed for pupils of more advanced age and greater proficiency, were intended for the benefit of the whole of the town, and not of particular districts. Still it depends upon the committee, to prescribe the qualifications, and make all the reasonable rules, for organizing such schools and regulating and conducting them.

The power of general superintendence vests a plenary authority in the committee to arrange, classify, and distribute pupils, in such a manner as they think best adapted to their general proficiency and welfare. If it is thought expedient to provide for very young children, it may be, that such schools may be kept exclusively by female teachers, quite adequate to their instruction, and yet whose services may be obtained at a cost much lower than that of more highly-qualified male instructors. So if they should judge it expedient to have a grade of schools for children from seven to ten, and another for those from ten to fourteen, it would seem to be within their authority to establish such schools. So to separate male and female pupils into different schools. It has been found necessary, that is to say, highly expedient, at times, to establish special schools for poor and neglected children, who have passed the age of seven, and have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. If a class of youth, of one or both sexes, is found in that condition, and it is expedient to organize them into a spearate school, to receive the special training, adapted to their condition, it seems to be within the power of the superintending committee, to provide for the organization of such special school.

A somewhat more specific rule, perhaps, on these subjects, might be beneficially provided by the legislature; but yet, it would probably be quite impracticable to make full and precise laws for this purpose, on account of the different condition of society in defferent towns. In towns of a large territory, over which the inhabitants are thinly settled, an arrangement of classification going far into detail, providing different schools for pupils of different ages, of each sex, and the like, would require the pupils to go such long distances from their homes to the schools, that it would be quite unreasonable. But in Boston, where more than one hundred thousand inhabitants live within a space so small, that it would be scarcely an inconvenience to require a boy of good health to traverse daily the whole extent of it, a system of distribution and classification may be adopted and carried into effect, which may be useful and beneficial in its influence on the character of the schools, and in its adaptation to the improvement and advancement of the great purpose of education, and at the same time practicable and reasonable in its operation.

In the absence of special legislation on this subject, the law has vested the power in the committee to regulate the system of distribution and classification; and when this power is reasonably exercised, without being abused or perverted by colorable pretenses, the decision of the committee must be deemed conclusive The committee, apparently upon great deliberation, have come to the conclusion,

that the good of both classes of schools will be best promoted, by maintaining the separate primary schools for colored and for white children, and we can perceive no ground to doubt, that this is the honest result of their experience and judg ment.

It is urged that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence, and we cannot say, that their decision upon it is not founded on just grounds of reason and experience, and in the results of a discriminating and honest judgment.

The increased distance, to which the plaintiff was obliged to go to school from her father's house, is not such, in our opinion, as to render the regulation in question unreasonable, still less illegal.

On the whole the court are of opinion, that upon the facts stated, the action cannot be maintained.

Plaintiff nonsuit.

Mr. BLOCH. But I would like to point out one statement in the opinion at page 206 of the official report, and this was in 1849:

The great principle advanced by the learned and eloquent advocate of the plaintiff

and that is referring to Senator Sumner

is that by the constitution and laws of Massachusetts, all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law. This is a broad general principle such as ought to appear in the Declaration of Rights and is perfectly sound. It is not only expressed in terms but pervades and animates the whole spirit of our Constitution of free government. But when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment.

But only that the rights of all as they are settled and regulated by law are equally entitled to the paternal consideration and protection of the law for their maintenance and security. What those rights are, to which individuals and the infinite variety of circumstances by which they are surrounded in the society are entitled must depend on laws adapted to their respective relations and conditions. And then he says at page 209:

In the absence of special legislation on this subject, the law has vested the power in the committee to regulate the system of distribution and classification, and when this power is reasonably exercised without being abused or prevented by colorable pretenses, the decision of the committee must be deemed conclusion. It is urged that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law and probably cannot be changed by law. Whether this distinction in prejudice existed in the opinion in feelings of the community would not be as effectually fostered by compelling colored and white children to associate together in the same schools may well be doubted;

And so on.

Now that comes, I repeat, not from a Georgia judge, not from a North Carolina judge, but from a justice of the Supreme Court of Massachusetts.

And, sir, the Gallagher case decided in 1883-when I read these cases in a gathering not long ago someone made the remark under their breath "Horse and buggy days" but the Constitution, gentlemen, was the same.

Mr. SLAYMAN. Excuse me, Mr. Bloch, that was the Roberts case? Mr. BLOCH. The first case I read was the Roberts case. Of course, at the time of the Roberts decision, the 14th amendment had not been adopted. That was before the Civil War, the War Between the States, whichever you prefer.

But the people on the relation of King v. Gallagher was decided by the court of appeals in New York in 1883, and here is what they say— I won't read it all. I will ask leave to put it in the record.

Senator ERVIN. Without objection, the whole decision will be included in the record.

(The document referred to above is as follows:)

THE PEOPLE, EX REL. THERESA B. KING, BY GUARDIAN, ETC., APPELLANT, V. JOHN GALLAGHER, PRINCIPAL, ETC., RESPONDENT

STATEMENT OF CASE

October 1883

Under the provisions of the Common School Act of 1864 (§ 1, tit. 10, chap. 555, Laws of 1864) authorizing the establishment of separate schools for the education of the colored race, in cities and incorporated villages, the school authorities therein have power, when, in their opinion, the interests of education will be promoted thereby, to establish schools for the exclusive use of colored children; and when such schools are established and provided with equal facilities for education, they may exclude colored children from the schools provided for the whites (DANFORTH and FINCH, JJ., dissenting).

The same power is given to the board of education of the city of Brooklyn by the acts relating to the public schools of that city (Chap. 143, Laws of 1850; § 1, tit. 16, chap. 863, Laws of 1873). (DANFORTH and FINCH, JJ., dissenting.) The establishment of such separate schools for the exclusive use of the different races is not an abridgement of the "privileges or immunities" preserved by the fourteenth amendment of the Federal Constitution, nor is such a separation a denial of the equal protection of the laws given to every citizen by aid amendment.

The said statutory provisions, therefore, were not abrogated by said amendment (DANFORTH and FINCH, JJ., dissenting).

It seems that the "privileges and immunities" which are protected by said amendment are those only which belong to the citizen as a citizen of the United States; those which are granted by a State to its citizens and which depend solely upon State laws for their origin and support are not within the constitutional inhibition, and may lawfully be denied to any class or race by the State at its will and discretion (DANFORTH and FINCH, JJ., dissenting).

It seems, also, that as the privilege of receiving an education at the expense of the State is created and conferred only by State laws, it may be granted or refused to any individual or class at the pleasure of the State (DANFORTH and FINCH, JJ., dissenting).

Said statutory provisions were not repealed by the Civil Rights Act of 1873 (Chap. 186, Laws of 1873); they do not deprive colored persons of the "full and equal enjoyment of any accommodation, advantage, facility or privilege," within the meaning of said act; nor do they discriminate in any manner against them (DANFORTH and FINCH, JJ., dissenting).

All that is required by said act, or by the constitutional amendment, if applicable, is the privilege of obtaining an education under the same advantages, and with equal facilities, as those enjoyed by any other individual. Equality, and not identity of rights and privileges, is what is guaranteed to the citizen (DANFORTH and FINCH, JJ., dissenting).

Board of Education v. Tinnon (26 Kans. 1), Clark v. Board of Directors, etc. (24 Iowa, 266), Smith v. Directors, etc. (40 id. 518), Dove v. Ind. School Dist. (41 id. 689), People, ex rel. Longress, v. Board of Education (101 Ill. 308; 40 Am. Rep. 196), People v. Board of Education (18 Mich. 400), C. R. R. Co. v. Green (86 Penn. St. 421; 27 Am. Rep. 718), Decuir v. Benson (27 La. Ann. 1), Donnell v. State (48 Miss. 680; 12 Am. Rep. 375), Coger v. N. W. Union Packet Co. (37 Iowa, 145), R. R. Co. v. Brown (17 Wall. 446), Strauder v. W. Va. (100 U. S. 303), distinguished.

(Argued June 18, 1883; decided October 9, 1883.)

APPEAL from order of the General Term of the City Court of Brooklyn, which affirmed an order of Special Term denying a motion for a writ of mandamus requiring defendant, as principal of public school No. 5, in the city of Brooklyn, to admit the relator to said school.

The material facts are stated in the opinion.

F. W. Catlin for appellant. Defendant was the proper person against whom to ask for a mandamus. (77 N. Y. 503-507; Morse on Banking, 137; People v. Throop, 12 Wend., 184; High's Extraordinary Legal Remedies, 217, § 311.) The action of the committees of the board of education and the principal of the school in excluding relator on the ground of color was unauthorized. (Laws of 1850, chap. 143, § 6; Thompson v. Schermerhorn, 6 N. Y. 92; Birdsall v. Clark, 73 id. 73; People v. Throop, 12 Wend., 184; People v. Board of Education, 18 Mich. 400; Ward v. Flood, 48 Cal. 36; 17 Am. Rep. 405; Dallas v. Fosdick, 40 How. Pr. 254; Cory v. Carter, 48 Ind. 327; 17 Am. Rep. 738; Beaty v. Knowles, 4 Pet. 152; Wright v. Briggs, 2 Hill, 77; People v. Lambier, 5 Den. 9; Sharp v. Spier, 4 Hill, 76.) The prohibitions of the fourteenth amendment are addressed to the States, and have the effect of invalidating any State law in conflict with them. (Ex parte Virginia, 10 Otto, 339-346; Virginia v. Rives, id. 313-318; Neal v. Delaware, 13 id. 370; Strauder v. W. Virginia, 10 id. 303, 309; Slaughter-House Cases, 16 Wall. 36; Board of Education v. Tinnon, 25 Alb. L. J. 289; R. R. Co. v. Brown, 17 Wall. 446; Board of Education v. Tinnon, 26 Kans. 1; 25 Alb. L. J. 289.) The Civil Rights Act of this State, passed in 1873 (Chap. 186) repealed and annulled any law existing at the date of its passage, if any then existed, which authorized the exclusion of children from the public schools, or discrimination against them, solely on account of color. (Comm. on Written Laws, §§ 82, 192; Board of Education v. Tinnon, 26 Kans. 1; 25 Alb. L. J. 288; Clark v. Board of Directors, 24 Iowa, 266; Smith v. Directors, 40 id. 518; Dove v. School District, 41 id. 689; People, ex rel., v. Board of Education, 101 Ill. 308; People v. Board of Education, 18 Mich. 400; Cent. R. R. Co. v. Green, 86 Penn. St. 421; Decuir v. Benson, 27 La. Ann. 1; Donnell v. State, 48 Miss. 680; Coger v. Un. Packet Co., 37 Iowa, 145.)

F. E. Dana for respondent. The granting of a writ of mandamus is in the discretion of the court to which the application is made. (Matter of Sage, 70 N. Y. 220; People ex rel. Faile, v. Ferris, 76 id. 326; Matter of Gardner, 68 id. 467; Ex parte Fleming, 4 Hill, 581; People v. Common Council, 78 N. Y. 56; Van Rensselaer v. Sheriff, 1 Cow. 501; People v. Contracting B'd, 27 N. Y. 378.) It will issue only in a case of clear and not of doubtful right. (Matter of Gardner, 68 N. Y. 467; People v. Croton Aqueduct, 49 Barb. 259; Reeside v. Walker, 11 How. [U. S.] 272; People v. Leonard, 74 N. Y. 443; People v. Common Council, 78 id. 56.) Generally it will not issue when the relator has a legal remedy by action for damages. (Matter of Gardner, 68 N. Y. 467; People v. Sup'v'rs, 11 id. 563; People v. Mayor, 10 Wend. 393; People v. Easton, 13 Abb. [N. S.] 159; Robinson v. Chamberlain, 34 N. Y. 389; Howland v. Eldridge, 43 id. 457; Oneida C. P. v. People, 18 Wend. 79; People v. Leonard, 74 N. Y. 443; People v. Common Council of Troy, 78 id. 33.) This proceeding was improperly brought against the respondent, who was but a mere employe of the board of education of the city of Brooklyn. (Matter of Gardner, 68 N. Y. 467.) The board of education had the right to establish separate schools for colored children and to assign colored children living contiguously thereto to attend them. (Laws of 1873, chap. 420; Laws of 1864, chap. 555, § 12; Laws of 1850, chap. 143, § 4; Laws of 1843, chap. 63; Laws of 1845, chap. 306; Laws of 1849, chap. 140; Laws of 1864, chap. 155, title 13, § 14; title 7, article 5, § 39; Gilmour's Code Public Instruction, 385.) Neither the Constitution nor the fourteenth amendment affects the rights of the relator or apply to this case. (Slaughter-House Cases, 16 Wall. 36; Hall v. DeCuir, 5 Otto, 485; Missouri v. Lewis, 101 U. S. 22; People v. Easton, 13 Abb. [N. S.] 159; State v. McCann, 21 Ohio, 198; Cory v. Carter, 17 Am. Rep. 738, 766; Acts session, 1, 39 Cong. 222, July 23, 1866; Acts session 1, 39 Cong. 354, July 28, 1866; Acts session 3, 42 Cong. 260, March 3, 1873; Wood v. Flood, 17 Am. Rep. 405; Dallas v. Fosdick, 40 How. 249; State v. Duffy, 8 Am. Rep. 713; Roome's Law of Corporations, § 323; 10 Federal Reporter, 730; Roberts v. City of Boston, 59 Mass. 198; B'd of Edn. of Ottowa v. Turner, 25 Alb. L. J. 288.) The act of 1873 (Chap. 186), known as the Civil Rights Act does not interfere with the right of the board of education to establish colored schools and assign colored children thereto. (People, ex rel. Johnson, v. Welch, Sept., 1875, MSS. op.; People v. Easton, 13 Abb. [N. S.] 159.)

RUGER, Ch. J. The relator applied to the court below at a Special Term of the City Court of Brooklyn for a writ of mandamus against the respondent, then the

principal of public school No. 5 of that city, after a refusal, to compel him to admit her to the privileges of a pupil at such school, which application was denied. This appeal is brought from the affirmance of such decision by the General Term of that court.

The relator is a colored female about twelve years of age, residing in public school district No. 5, of the city of Brooklyn, and would be entitled to attend that school but for the regulations of its board of education. By such regulations, schools for the exclusive use of its colored population of equal grade and educational advantages with its other schools were established at convenient and accessible points, and the colored children residing in said city were duly assigned to the respective schools provided for them. One of these schools, and being that which the relator was assigned to attend, was located in the same school district in which she resided.

These schools have been presumably established and conducted for a period of years, and their adaptation to the accomplishment of the most efficient purposes of education has been subjected to the test of actual experiment and trial without any claim being made but that the system adopted has contributed to the best interests of both classes. The relator, however, complains, not but that she is receiving the highest educational advantages that the city is capable of giving her, but that she is not receiving those facilities at the precise place which would be the most gratifying to her feelings.

The question broadly stated presented by this appeal is whether the school authorities of that city have the right to classify he pupils in such schools in the administration of their authority to regulate the methods of education pursued therein, or whether the provisions of the Constitution of the United Sates require that each person attending such school, shall, without regard to sex, color or age, be awarded upon demand the same privileges in the same places and under the same circumstances as those enjoyed by any other scholar therein.

Such school authorities have determined, in the exercise of their discretion, that the interests of education may be best promoted by the instruction of scholars of different races in separate schools; and the question is now presented whether they are debarred by the law of the land from adopting those methods which in their judgment are the wisest and most efficient to accomplish the purpose intended.

Under our common school system its supervising authorities are necessarily invested with the exclusive right of determining all such questions as pertain to the exercise of the discretionary powers conferred upon them, and the natural and legal presumption in favor of the conscientious performance of official duty requires us to assume, in the absence of any evidence to the contrary, that the classification in question inures to the educational advantage of the community. That our common school system should be administered to the best advantage for all interests the most casual reflection as well as the uniform practice in educational institutions shows that its school authorities should be vested with large discretionary power in arranging and classifying the various departments of public instruction, to adapt them to the diversified capacity, disposition and needs of the numerous persons they are required to govern and instruct, and any arbitrary interference with the exercise of such discretion, it is obvious, must be productive of injury to the cause of education.

It would be unfortunate if it should be found that any imperative rule of law prevents those who are charged with the management of the common schools of the State, from adopting such arrangements for instruction as their experience had shown to be adapted to the highest educational interests of the people. Upon referring to the various statutes on the subject, we find that the regulations referred to are fully authorized by the laws of this State relating to the management and control of its public common schools. Section 1 of title 10 of chapter 555 of the Laws of 1864 specially provides for the establishment of separate schools for the education of the colored race, in all of the cities and villages of the State, wherever the school authorities of such city or village may deem it expedient to do so. The act containing this provision has been, since its enactment, frequently before the legislature for amendment, and the provision in question has apparently been frequently approved by them, and now remains unchanged. The system of authorizing the education of the two races separately has been for many years the settled policy of all departments of the State government, and it is believed obtains very generally in the States of the Union.

The common schools of Brooklyn are organized and conducted under a special act relating to that city, contained in chapter 143 of the Laws of 1850, which confers upon the board of education of such city "the entire charge and