discuss it some day, I hope you will, under what power of Congress does the Congress of the United States appropriate money for the erection and maintenance of public schools in the States?

Well, we are supposed to be a Government of delegated powers. The Congress has only such powers as the States have delegated to it. Under what power of Congress are those bills being considered? But to go back to Plessy v. Ferguson, it was repeatedly followed in later cases, namely, Chesapeake and Ohio Railway Company v. Kentucky (179 U. S. 388 (1900)); Chiles v. Chesapeake and Ohio Railway Company (218 U. S. 71 (1910)); McCabe v. A. T. & S. F. Railway Company (235 U. S. 151 (1914)), and in them the doctrine was confirmed by Justices McKenna, Holmes, Day, Moody, Lurton, Hughes, Joseph R. Lamar, and McReynolds.

And, in 1927, Gong Lum v. Rice (275 U. S. 78), was decided by Chief Justice William Howard Taft with these Justices concurring: Oliver Wendell Holmes, of Massachusetts; Van Devanter, of Wyoming; Brandeis, of Massachusetts; Butler, of Minnesota; Sanford, of Tennessee; Stone, of New York; McReynolds, of Tennessee; and Sutherland, of Utah.

The Chief Justice cited approvingly Cumming v. Richmond County Board of Education, supra, and also, among others, these cases:

People v. Cisco (161 New York 598), in which the court of last resort of New York reiterated the principle of the Gallagher case.

I have here, sir, a complete copy of the opinion in the Cisco case which I ask be made a part of the record. That case was decided by a court of which Judge Alton B. Parker was chief judge, afterwards a distinguished candidate for the Presidency of the United States, either in 1904 or 1908.

Senator ERVIN. 1904.

Mr. BLOCH. This was in 1900. Here is what the New York court said:

Thus, the same statutory authority for the maintenance of such separate schools now exists as existed when King v. Gallagher was decided.

Note this sentence:

Therefore, as this question has already been decided, it is not an open one in this court.

The New York court held to the principle, the great principle, of stare decisis. And it has this pungent, cogent sentence in it:

It was the facilities for and the advantages of an education that the State was required to furnish to all the children, and not that it should provide for them any particular class of associates while such education was being obtained.

That is not a North Carolina judge, sir. That is not a Georgia judge talking. That is a group of New York judges talking in 1900 about the very same Constitution that the Supreme Court of the United States considered in 1954.

New York agreed with our theory, that a Constitution is not a chameleon, a lizard remarkable for the changes of color of the skin according to the mood of the animal or surrounding conditions. Senator ERVIN. That will be included in the record.

(The document is as follows:)

THE PEOPLE OF THE STATE OF NEW YORK EX REL. ELIZABETH CISCO, APPELLANT, V. THE SCHOOL BOARD OF THE BOROUGH OF QUEENS, NEW YORK CITY, RESPONDENT

(Vol. 161, N. Y. Rep.; February 1900)

OPINION OF THE COURT, PER MARTIN, J.

1. SCHOOLS SEPARATE SCHOOLS FOR COLORED CHILDREN. The Consolidated School Law (L. 1894, ch. 556, tit. 15, § 28) authorizes the school board of the borough of Queens to maintain separate schools for the education of its colored children, and to exclude them from its other schools, provided, always, that the schools for colored children make the same provisions for their education as are made for others, so far as the nature, extent and character of the education and facilities for obtaining it are concerned.

2. CONSTITUTIONAL LAW-PENAL CODE, § 383. Neither the provisions of article 9 of the Constitution of 1894, relating to a system of free common schools, nor those of section 383 of the Penal Code, making it a misdemeanor for teachers or officers of the common schools and public institutions of learning to exclude any citizen from the equal enjoyment of any accommodation or privilege, qualify or limit the right to establish separate schools of such a character, the school board having the right to determine where different classes of pupils shall be educated, provided equal facilities and accommodations are afforded all. People ex rel. Cisco v. School Board, 44 App. Div. 469, affirmed. (Argued January 9, 1900; decided February 6, 1900.)

APPEAL from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 28, 1899, affirming an order of the Special Term denying an application for a peremptory writ of mandamus to compel the defendant to admit the children of the relator to one of the common schools of the borough of Queens, without distinction of color.

The facts, so far as material, are stated in the opinion.

George Wallace for appellant. The respondent has no right to exclude relator's children from the common schools on account of their color. (L. 1897, ch. 378, §§ 1056, 1094; L. 1884, ch. 248; People v. King, 110 N. Y. 418; Penal Code, § 383; L. 1894, ch. 671; Const. N. Y. art. 9, § 1.)

John Whalen, Corporation Counsel (William P. Carr of counsel), for respondent. The school board had the power to organize a separate school for the instruction of children of African descent and to assign thereto the children of the relator. (L. 1897, ch. 378, § 1094; L. 1864, ch. 555, tit. 10, § 1; People cx rel. v. Gallagher, 93 N. Y. 438; Ward v. Flood, 48 Cal. 36; Cory v. Carter, 48 Ind. 327; Roberts v. Boston, 59 Mass. 198; Lehen v. Brummell, 103 Mo. 546; McMillan v. School Committee, 107 N. C. 609; L. R. R. Co. v. Mississippi, 133 U. S. 587; Plessy v. Ferguson, 163 U. S. 537; State v. McCann, 21 Ohio St. 211.)

MARTIN, J. The single question in this case is whether the school board of the borough of Queens is authorized to maintain separate schools for the education of the colored children within the borough, and to exclude them from the other schools therein, it having made the same provisions for their education as are made for others so far as the nature, extent, and character of the education and facilities for obtaining it are concerned.

In People ex rel. King v. Gallagher (93 N. Y. 438) the statute of 1864, which was the Common School Act, chapter 143, Laws of 1850, and chapter 863, Laws of 1873, which related to the public schools of the city of Brooklyn, were under consideration. They authorized the establishment of separate schools for the education of the colored race in cities and villages of the state, and in the city of Brooklyn. In that case it was held that they were valid, that they did not deprive children of African descent from the full and equal enjoyment of any accommodation, advantage, facility, or privilege accorded to them by law, and that they in no way discriminated against colored children. It was also held that the fourtheenth amendment of the Federal Constitution only required that such children should have the same privilege of obtaining an education with equal facilities as are enjoyed by others without regard to race or color, and that the requirement that they should be educated in separate schools did not impair or interfere with their rights under the Constitution or with any other legal rights of colored pupils.

The Consolidated School Law (Laws of 1894, ch. 556, tit. 15, § 28) contains the same provisions relating to this subject as were contained in the statute of 1864. Thus the same statutory authority for the maintenance of such separate schools

now exists as existed when the King case was decided. Therefore, as this question has already been decided, it is not an open one in this court.

But it is insisted by the appellant that as the Penal Code (Sec. 383) makes it a misdemeanor for teachers or officers of common schools and public institutions of learning to exclude any citizen from the equal enjoyment of any accommodation or privilege, it in effect confers upon colored children the right to attend any school they or their parents may choose, and that the school board had no authority to establish separate schools and deny them the right to attend elsewhere. The first answer to this insistence is that the Penal Code was in existence at the time of the decision of the King case, and must be regarded as having been considered in that case. Moreover, independently of that decision, we do not see how that statute changes the effect of the conclusion reached in the case referred to, provided the facilities and accommodations which were furnished in the separate schools were equal to those furnished in the other schools of the borough. It is equal school facilities and accommodations that are required to be furnished, and not equal social opportunities.

The case of People v. King (110 N. Y. 418) is relied upon as modifying or overruling People ex rel. King v. Gallagher. We do not think such is its effect. In the former case a colored person was excluded from a place of public amusement controlled by the defendant, and it was there held that the latter was guilty of a misdemeanor. In that case there was a total denial of the complainant's right to attend or to paricipate in the enjoyment of the entertainment. There no other accommodation or facility was furnished by the defendant. so here. In this case the colored children were given the same facilities and accommodations as others. We are of the opinion that the case of People v. King neither modifies nor affects the principle of the decision in People ex rel. King v. Gallagher, so far as it applies to the question under consideration.

Not

Again it is said that the present Constitution requires the legislature to provide for the maintenance and support of a system of free common schools wherein all the children of this state may be educated, and, therefore, the school board was required to admit to any school under its control all the children who desired to attend that particular school. Such a construction of the Constitution would not only render the school system uttery impracticable, but no such purpose was ever intended. There is nothing in that provision of the Constitution which justifies any such claim. The most that the Constitution requires the legislature to do is to furnish a system of common schools where each and every child may be educated, not that all must be educated in any one school, but that it shall provide or furnish a school or schools where each and all may have the advantages guaranteed by that instrument. If the legislature determined that it was wise for one class of pupils to be educated by themselves, there is nothing in the Constitution to deprive it of the right to so provide. It was the facilities for and the advantages of an education that it was required to furnish to all the children, and not that it should provide for them any particular class of associates while such education was being obtained. In this case, there is no claim that the relator's children were excluded from the common schools of the borough, but the claim is that they were excluded from one or more particular schools which they desired to attend and that they possessed the legal right to attend those schools, although they were given equal accommodations and advantages in another and separate school. We find nothing in the Constitution which deprived the school board of the proper management of the schools in its charge, or from determining where different classes of pupils should be educated, always providing, however, that the accommodations and facilities were equal for all. Nor is there anything in this provision of the Constitution which prevented the legislature from exercising its discretion as to the best method of educating the different classes of children in the state, whether it relates to separate classes as determined by nationality, color or ability, so long as it provides for all alike in the character and extent of the education which is furnished and the facilities for its acquirement.

The order should be affirmed, with costs.

PARKER, Ch. J., GRAY, O'BRIEN, BARTLETT and HAIGHT, JJ., concur; VANN, J., not voting.

Order affirmed.

Senator ERVIN. I was astounded some time ago to read an article by a man who was a former secretary of one of the Justices of the Supreme Court of the United States in which he took us very much to task for suggesting that the Constitution of the United States should

be interpreted to have the meaning which was given to it by the people who drafted and ratified it. The implication of his article was that George Washington, who happened to be the President of the Constitutional Convention of 1787, and Alexander Hamilton, Benjamin Franklin, James Madison, and their associates, whom I have always considered to be hardheaded and intelligent men, sat down and wrote out a document which they did not intend should have any meaning, except such as some judges might ascribe to it at some remote time in the future.

I think that view is an insult to the intelligence of the men who drafted the Constitution, and to the people who ratified it. I would say myself, as you mentioned, that the Constitution was really a compact between the States and the people on the one hand, and the Federal Government on the other. If a man should sign a contract whose language could be interpreted to mean one thing today and another thing tomorrow, he would be a proper subject for an inquisition in lunacy. Yet, we hear it solemnly asserted that George Washington and his hardheaded and highly intelligent associates drew up that kind of a contract when they drafted the Constitution of the United States.

Mr. BLOCH. That theory of a constitution was that it was sort of like a chameleon, which you and I know is a lizard, remarkable for the changes of the color of the skin according to the mood of the animal or surrounding conditions. Well, if we are living in a day when a constitution is a chameleon, we might just as well give up.

Now the next State court case, sir, which I would like to put into the record, is the opinion of the Supreme Court of Missouri in the case of Lehew et al. v. Brummell et al. (103 Missouri 546), in which the Supreme Court of Missouri held in 1890-held that the constitution and laws of this State providing separate schools for colored children are not forbidden or in conflict with the 14th amendment to the Federal Constitution, and used this sentence:

Equality and not identity of privileges is guaranteed to the citizens by said amendment.

At least 1 of the gentlemen, 1 of the Senators who is on the committee, certainly would have more knowledge of the gentlemen who composed the court at this time than I have, but I was particularly interested with this statement at page 551 in the opinion:

But it will be said that the classification now in question is one based on color, and so it is. But the color carries with it natural race peculiarities which furnish the reason for the classification.

There are differences in races and between individuals of the same race, not created by human laws, some of which can never be eradicated.

These differences create social relations recognized by all well-organized governments. If we cast aside theories and look to practical results, it seems to us it must be conceded that separate schools for colored children is a regulation to their great advantage.

Mr. Chairman, that is what Missouri has repeatedly thought about it.

Missouri adopted a new constitution in 1945, 45 years after this decision, and in the constitution of 1945 as Georgia did in its constitution of 1945, reiterated that provision.

And it was the great State of Missouri which, in the case of Gaines v. Canada, started the law-school litigation, or laid the basis for it, to which I will allude later.

Senator ERVIN. That will be incorporated in the record at this point. (The document is as follows:)

SUPREME COURT OF MISSOURI, VOL. 103, OCTOBER TERM, 1890

LEHEW ET AL. V. BRUMMELL ET AL., APPELLANTS

DIVISION ONE

1. Federal Constitution: COLORED CHILDREN: SEPARATE SCHOOLS: FOURTEENTH AMENDMENT. The constitution and laws of this state providing for separate schools for colored children are not forbidden by or in conflict with the fourteenth amendment to the federal constitution.

2.

:

:

:

Equality and not identity of privileges is guaranteed to the citizen by said amendment.

3.

-:

:

:

Nor does the fact that colored children have to go further to attend school than white children furnish a substantial ground of complaint on the part of the former.

4. Practice: INFANT'S GUARDIAN AD LITEM. A suit cannot be further prosecuted against an infant defendant after service of process, until a guardian ad litem has been appointed.

Appeal from Grundy Circuit Court.-HON. G. D. BURGESS, Judge.
AFFIRMED.

E. M. Harber for appellants.

Any attempt on the part of the state to deprive certain of the children of a certain school district from attending the only school in said district, of which they are listed and properly enumerated, for the sole and only reason that they are colored, or of African descent, is in violation of section 1 of the fourteenth amendment to the constitution of the United States. Strauder v. West Virginia, 100 U. S. 303; Virginia v. Rives, 100 U. S. 313; United States v. Stanley, 109 U. S. 8; Elk v. Wilkins, 112 U. S. 94; Matter of Hall, 50 Conn. 131; Board of Ed. v. Tinnon, 13 Cent. L. J. (Kan.) 272; People ex rel. v. Gallagher, 93 N. Y. 438. Judgment was improperly rendered against Ananias, Cordelia, Lord Thomas and Odes Brummell, they being infants. R. S. 1889, sec. 2005; Clark v. Crosswhite, 28 Mo. App. 34; Railroad v. Campbell, 62 Mo. 585; Campbell v. Gaslight Co., 84 Mo. 352; Goode v. Crow, 51 Mo. 213; Robinson v. Hood, 67 Mo. 660.

R. A. DeBolt for respondents.

(1) A statute establishing separate free public schools for white and colored children is in harmony with the constitution of this state (art. 11, sec. 3), and is not in violation of the fourteenth amendment of the constitution of the United States, and, where appropriate schools for colored children are maintained, such children may be lawfully excluded from schools established for white children. State ex rel. v. McCann, 21 Ohio St. 198; Van Camp v. Board, 9 Ohio St. 407; State ex rel. v Cincinnati, 19 Ohio, 178: Ward v. Wood, 48 California, 36; 17 Am. Rep. 405; Roberts v. Boston, 5 Cushing, 198; People v. Gallagher, 93 N. Y. 438, and citations; 45 Am. Rep. 232; Cory v. Carter, 17 Am. Rep. 738; 48 Ind. 327; State ex rel. v. Duffy, 8 Am. Rep. 713; 7 Nevada, 342. (2) The fact that, by the organization of separate schools, a person is required to go further to reach his place of instruction than he otherwise would, is a mere incident to any classification of the pupils in the public schools, and affords no substantial ground of complaint. People ex. rel. v. Gallagher, 93 N. Y. 451; Ward v. Flood, 48 Cal. 52, 53.

BLACK, J.-The five plaintiffs in this case reside in school district number 4, in Grundy county, and each has children entitled to attend the public school maintained therein for the education of white children. In September, 1887, when this suit was commenced, the defendant Barr was the teacher, and three of the defendants were directors of the school district. The defendant Brummell is a man of African descent, and at the last-mentioned date had four children, all of whom resided with him in said district and were of the ages entitling them to attend the public schools. These four children were the only colored children of school age in the district. No separate school was ever established or maintained therein for the education of colored children; but there was such a separate school in the town of Trenton in the same county, three and one-half miles from Brummell's residence. No white child in district number 4 had to go more than two miles to reach the schoolhouse. These colored children were permitted to attend the school maintained for white children in district number 4 for a short time.