On the foregoing facts a temporary injunction was awarded the plaintiffs, restraining Brummell's children from attending the school so established for white children, which was made perpetual on the final hearings of the cause, and the defendants appealed.

But two questions are presented by the briefs for our consideration. The first is, that the laws of this state concerning the education of colored children are in conflict with section 1 of the fourteenth amendment of the constitution of the United States, and, therefore, void.

Section 1, of article 11, of the constitution of this state, makes it the duty of the general assembly to establish and maintain free public schools for the gratutious instruction of all persons in this state between the ages of six and twenty years; and section 3 of the same article declares: "Separate free public schools shall be established for the education of children of African descent."

A system of free public schools has been established by general laws throughout the state, and for all the purposes of this case it will be sufficient to notice the statutes concerning colored schools. The first section of the amendatory act of 1887 (Acts, 1887, p. 264) provides: "When there are within any school district in this state fifteen or more colored children of school age, the school board of such school district shall be and they are hereby authorized and required to establish and maintain within such school district a separate free school for said colored children;" and the section goes on to say, in substance, that the term of such school and the advantages and privileges thereof shall be the same as provided for other schools of corresponding grade. "Should any school board neglect or refuse to comply with the provisions of this section, such school district shall be deprived of any part of the public funds for the next ensuing school year." The second section provides that, "when the number of colored children of school age residing in any school district shall be less than fifteen, they shall have the privilege and are entitled to attend school in any district in the county wherein a school is maintained for colored children." Detailed provisions are then made whereby the district in which such children reside must pay its proper share of the expenses of maintaining the school in the other district which the children attend.

These statute laws simply carry out and put in operation the command of that section of our constitution before quoted, and the objection now made is leveled at the constitutional provision, and it is that which we are asked to strike down, because of the contention that it violates section 1 of the fourteenth amendment of the constitution of the United Staes, which declares: "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 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."

This section treats of different and distinct subjects, and the defendants do not point out or indicate to us the clause upon which they rely. The clause which declares that all persons born or naturalized in the United States are citizens of the United States, and of the state wherein they reside, can have no application to the case in hand further than this, that it points out and makes a distinction between citizenship of the United States and citizenship of a state. The next clause ordains, that no state shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States. The distinction just mentioned is carried into this provision, which relates, and relates only, to privileges and immunities of a citizen of the United States as distinguished from the privileges and immunities of a citizen of a state. Slaughter-House Cases, 16 Wall. 74; Bradwell v. State, 16 Wall. 130.

The common-school system of this state is a creature of the state constitution and the laws passed pursuant to its command. The right of children to attend the public schools and of parents to send their children to them is not a privilege or immunity belonging to a citizen of the United States, as such. It is a right created by the state, and a right belonging to citizens of this state, as such. It, therefore, follows that the clause in question is without application to the case in hand.

We then come to the last clause, which is prohibitory of state action. It says, nor shall any state deny to any person within its jurisdiction the equal protection of the laws. Speaking of this clause in its application to state legislation as to colored persons, Justice STRONG said: "What is this but declaring that the law in the states shall be the same for the black as for the white; that all persons,

whether colored or white, shall stand equal before the laws of the states, and;. in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?" Strauder v. West Virginia, 100 U. S. 303. We then come to the simple question whether our constitution and the statutes passed pursuant to it, requiring colored persons to attend schools established and maintained at public expense for the education of colored persons only, deny to such persons "equal protection of the laws."

It is to be observed in the first place that these persons are not denied the advantages of the public schools. The right to attend such schools and receive instruction thereat is guaranteed to them. The framers of the constitution and the people by their votes in adopting it, it is true, were of the opinion that it would be better to establish and maintain separate schools for colored children. The wisdom of the provision is no longer a matter of speculation. Under it, the colored children of the state have made a rapid stride in the way of education to the great gratification of every right-minded man. The schools for white and black persons are carried on at a great public expense, and it has been found expedient and necessary to divide them into classes. That separate schools may be established for male and female pupils cannot be doubted. No one would question the right of the legislature to provide eseparate schools for neglected children who are too far advanced in years to attend the primary department; for such separate schools would be to the great advantage of that class of pupils. So, too, schools may be classed according to the attainments of the attendants in the branches taught. That schools may be classed on these and other grounds without violating the clause of the federal constitution now in question, must be conceded. But it will be said 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. These 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 different social relations recognized by all well-organized governments. If we cast aside chimerical 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.

It is true Brummell's children must go three and one-half miles to reach a colored school, while no white child in the district is required to go further than two miles. The distance which these children must go to reach a colored school is a matter of inconvenience to them, but it is an inconvenience which must arise in any school system. The law does not undertake to establish a school. within a given distance of anyone, white or black. The inequality in distances to be traveled by the children of different families is but an incident to any classification, and furnishes no substantial ground of complaint. People ex rel. King v. Gallagher, 93 N. Y. 438-451.

The fact must be kept in mind, for it lies at the foundation of this controversy, that the laws of this state do not exclude colored children from the public schools. Such children have all the school advantages and privileges that are afforded white children. The fact that the two races are separated for the purpose of receiving instruction deprives neither of any rights. It is but a reasonable regulation of the exercise of the right. As said in the case just cited, "Equality and not identity of privileges and rights is what is guaranteed to the citizen." Our conclusion is that 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 of the federal constitution; and the courts of last resort in several states have reached the same result. People ex rel. King v. Gallagher, supra; State ex rel. Garnes v. McCann, 21 Ohio St. 198; Cory v. Carter, 48 Ind. 328; Ward v. Flood, 48 Cal. 36.

A like result was reached in Massachusetts under a constitutional provision similar to the fourteenth amendment as to the question in hand. Roberts v. The City of Boston, 5 Cushing, 198. We are, also, of the opinion that our conclusion is in accord with the cases cited from the supreme court of the United States, the final arbiter of all such questions.

2. Brummell's minor children were made defendants, and the suit was prosecuted to final judgment against them, as well as against the other defendants, without the appointment of a guardian ad litem for the infants. After infant defendants have been served with process the suit cannot be further prosecuted until a guardian ad litem is appointed. R. S. 1879, sec. 3477. As to these minors,

whose names will be found in the record, the judgment is reversed, but as to the other defendants it is affirmed. All concur.

Mr. BLOCH. So, the separate but equal doctrine, enunciated and confirmed by justices so learned in the law that one of them has been a Republican President of the United States, and another, a chief judge of the court of last resort of New York State, had been a candidate for the Presidency on the Democratic ticket in 1908, became firmly established.

Can we of Georgia be blamed for depending upon a constitutional principle declared, ratified, and confirmed by William Howard Taft, Oliver Wendell Holmes, Brandeis, Harlan Fiske Stones, and so many other legal giants.

Depend upon it we did, most particularly when Gong Lum v. Rice, supra, was decided in 1927 by a unanimous court with an ex-President of the United States, who had also been dean of a great law school, Solicitor General of the United States, and a circuit judge, saying:

The right and power of the State to regulate the method of providing for the education of its youth at public expense is clear.

There was the application in 1927 of Plessy v. Ferguson to your public school system. We thought that by every principle of right, every principle of law, every principle of constitutional government, it had become a part of the Constitution just as if written into it.

Senator ERVIN. In view of the fact that a rather peculiar attempt has been made to distinguish Gong Lum v. Rice from the decision of May 1954, I will ask you whether or not it is your opinion as a lawyer the point of law involved in Gong Lum v. Rice was identical with the point of law involved in Brown v. The Board of Education.

Mr. BLOCH. In my opinion the point of law was exactly the same, and if you will read Gong Lum v. Rice closely, you will see where Chief Justice Taft recognized that the point of law was the same, that the same rule in Plessy v. Ferguson applied to the public school situation, and he said in the latter part of that decision-I wish I had it here but I have not-he said in the later part of his opinion, Mr. Chairman, that "the question is no longer an open one for discussion by this Court." And yet the Court, 27 years later, reopened it and upset all that we had done on the basis of it. It is not just a matter of theory. It is not a matter of theory, sir, as I shall point out now. We depended on it. We depended on pronouncements by Chief Justice Taft and those other legal giants of the law. We depended on their construction of the Constitution of the United States just as if it had been written into the 14th amendment, if you have separate but equal facilities you are complying with the law.

We thought that that was the contract that had been made with us. Senator ERVIN. And on the basis of that decision, the various States levied taxes and issued bonds to the extent of hundreds of millions of dollars for the purpose of conducting their schools in the manner which the Supreme Court of the United States declared was entirely consistent with the 14th amendment.

Mr. BLOCH. Yes, sir. Just look what we did. Fortunately our minds were running right together there, and I have got that developed right here, sir.

We treated the situation just as if the United States of America had entered into a solemn, binding agreement with us by the terms

of which we could educate the children of Georgia, the white children in one school, the colored children in another-separate, but equal.

We proceeded accordingly. In 1927, I was a member of the Georgia House of Representatives. My dear friend, Senator Richard B. Russell, was speaker. Times were prosperous for those days. We were called the spendthrift legislature. We appropriated about $20 million for the support of the whole State government annually.

Six million dollars of this went to the common school. Today our annual appropriation is around $300 million. Georgia now spends more anually on its university system than it did on its whole State government 30 years ago. Georgia now spends annually on its public school system six times as much as it did on its whole State Government 30 years ago.

And most of this money comes from the white citizens of Georgia. As late as 1956, in my county of Bibb, total ad valorem taxes paid by white citizens was $2,702,762.24 (95.16 percent), by colored citizens $137,474.80 (8.84 percent).

A breakdown of the tax collected for the year 1956 by the tax commissioner for Fulton County, Atlanta, Ga., shows the amount paid by white taxpayers (ad valorem taxes) $13,478,611.35; and the amount paid by colored taxpayers, $377,373.09.

In Fulton County, the most populous county of the State, white taxpayers pay 97.276 percent of the tax, and colored taxpayers 2.724 percent of the tax. (Letter to me from Standish Thompson, tax commissioner, dated February 9, 1957, in response to my inquiry of January 30, 1957.)

Just last year in my county of Bibb, to show our good faith there, even after the segregation decision of 1954, we voted a bond issue for schools of over $4 million to be used for separate white and colored schools.

The State of Georgia established a State school building authority in the year 1951. This authority issues revenue certificates for the construction of schools. Since the program was put into operation, the State school building authority has deposited with the trustees for construction purposes $162,427,700.90.

In addition, the local school systems have deposited with the authority for application to construction, cash supplements totaling $4,234,568.22, which produces a total of $166,662,269.12 in construction which is ultimately to be completed under the jurisdiction of the authority.

The authority has spent for work already in place as of January 31, 1957, the sum of $127,647,697.70, divided among 135 city and county school systems, white and colored.

There is in my statement, sir, a table which follows immediately, which graphically shows what Georgia has done and is doing under the separate but equal program since its recovery from the ravages of the Reconstruction era, and it is important to know that we had a gap after this contract of 1927 was entered into.

I like to call it that. All of us remember that shortly after that, the depression ensued and we were lucky we were living and eating much less spending very much money on the schools or anything else.

Then the war came along from 1939 to 1945, and then the South began to develop. And from 1945 on, as the South developed, it spent

89777-57-25

money on its schools, and it spent it lavishly, and it spent it without distinction as to race.

This table that is in my statement shows that the school facilities planned and completed under the State school building program shows 5,308 for whites and 5,381 for the colored, and breaks it down by years. The point is, sir, that after 1927 and after we got the money to do it with, we proceeded on our part to carry out that contract which we had made, and then suddenly out of a clear sky, came this devastating decision of May 17, 1954, which said that all that you have done in the past 27 years has got to be thrown out the window.

(The table referred to is as follows:)

TABLE I.-School facilities planned or completed under the State school building program (white race)

TABLE II.-School facilities planned or completed under the State school building

And even as in the early 19th century there was no complaint about slavery in the South. so long as other people of other sections could engage in slave trading, in building, owning and operating ships to transport captured human beings from the coasts of Africa to the coasts of America to be sold in bondage to southern planters, so in the early 20th century there was no complaint about civil rights, no attempt to resurrect the unconstitutional laws of the Reconstruction era for adjudication in the present era, so long as the South was the Nation's economic problem No. 1.

Even in the New Deal era, and its succeeding years (1933-45) when Franklin Delano Roosevelt was President of the United States, there was no such agitation or effort. But with the end of World War II, the South began to emerge from its conquered province status, had ceased being the Nation's economic problem No. 1. Learning of our natural resources, learning of our climate permitting year-round work, indoors and out, our supply of ambitious, intelligent people ready, able, and willing to work, as their ancestors had, learning of our freedom from alien concepts of government, industry began to move South.