The relator should look to the township Loard for redress, or should ask this court to send its process and mandates to them, and not to these defendants. [203] DAY, J. This is an application for a writ of mandamus against the local school directors and teacher, in a subdistrict of a township to admit the children of the plaintiff to the privileges of a specific district school. By agreement the case is submitted upon the facts stated in the information and answer, which are substantially as follows: as The plaintiff is a colored citizen having three children, and resides in school subdistrict number nine in the township of Norwich, Franklin county, Ohio. There is but one public school in the subdistrict, to which the plaintiff sends his children for instructions; but the teacher, under the direction of the local directors, wholly neglects and refuses to impart instruction to them, or treat them scholars, and denies them the educational advantages of the school. There are not twenty colored children in that subdistrict, subject to enumeration for school purposes; but, including the children of the plaintiff, there are more than that number of colored children in subdistrict number nine and the adjoining district of the incorporated village of Hilliard, in the same township. The township board of education has formed a joint district, within the limits of the two districts, for the education of colored children, as provided by law. They have erected a school house, and established a school in the joint district for the education of colored children, which school affords to such children all the advantages and privilege wants, Interests, and even prejudices, if you please, of each particular locality or neighLorbood. If, in their discretion, they inay classify either schools or scholars, in any manner whatever for the promotion of the best interests of schools and of education, basing their classification upon age, or sex, or scholarly attainment, as they undoubtedly may and do, every day; why may they not also [202] classify by color, if, in their judgment, it becomes necessary or expedient for them to do Bo? In this case, the classification based upon color, has not "abridged any of the privileges or immunities" of the relator, as a citizen of the United States, nor denied to him "the equal protection of the laws" of this state, as a citizen of the state. He has every right and privilege under the school laws of this state that I have. The only difference between us is, that I am required to send my children to one schoolhouse, and he to send his to another. Is that discrimination in his favor or mine? Who shall decide? His class or mine? It may be a matter of taste, but "de gustibus non disputandum." In defining the rights of citizenship and settling its immunities by legal adjudication, we do well to remember that social equality is not one of the elements of citizenship. It can neither be created nor controlled by constitutions, legislative enactments, or judicial decisions. It is the creature of a higher and more subtle law than any and all of these. School boards can neither make nor unmake it. The "ler scripta" which prescribes, defines and enforces it, is recorded only in the affections, the sensibilities, the Intellectual tastes and affinities, in the inner life of man or woman, In no event can a writ of mandamus issue against these defendants. They have not wade this classification nor established this separate school for colored children. It is not within their territorial limits or jurisdiction. nor is it under their control. The township board assessed the tax to build the house, and appropriated the money to establish the school, and control and man age all its interests, and directed the colored children to go there. These defendants themselves are subordinate to. and under the control of, the township board, in the exercise of their appropriate functions, and the discharge of all their dutles. colored children, such children may be excluded from those provided for white children. 1883. People v. Gallagher, 93 N. Y. 438, 447. Laws requiring separate schools for white and colored and prohibiting intermarriage of the races, are constitutional. 1879. Puit v. Commissioners, 94 N. C. 709, 719. Statutes enforcing the separation of the white and colored races in public conveyances and in public schools are not unconstitutional. 1892. Plessy, Ex parte, 11 So. Rep. 948, 950 (45 La. Ann. 80; 18 L. R. A. 639); 1896. Plessy v. Ferguson, 163 U. S. 537, 545 (16 Sup. Ct. Rep. 1138; 41 L. Ed. 256): 1896. Martin v. Board of Education, 26 S. E. Rep. 348, 349 (42 W. Va. 514): 1883. State v. Gray, 93 Ind. 303; 1874. Cory v. Carter, 48 Ind. 327, 354. A statute providing for separate schools for Indians, from which all negroes "to the fourth generation" are to be excluded, is constitutional. 1890. McMillan v. School Committee, 12 S. E. Rep. 330, 331 (107 N. C. 609; 10 L. R. A. 823). Where the state has not authorized separate common schools for colored children, a city board of education has no right to establish them, and exclude such children from the other schools. 1882. People v. Board of Education, 101 Ill. 308, 316 (40 Am. Rep. 196). In the absence of statute, boards of education have no power to exclude colored children from any of the public schools, where there is no reason therefor other than that they are colored. 1881. Board of Education v. Tinnon, 26 Kan. 1, 17. An act discriminating between white and black in distribution of school fund is vold. 1883. Claybrook v. Owensboro, 16 Fed. Rep. 297, 302. It is the duty of the directors of a school district to provide equal school facilities for the blacks and whites. They cannot claim to apportion the school funds and limit the school terms to each class according to their scholastic population; and when but a few days more than three months are left of the scholastic year, and they show no intention to provide a school for that time, they may be compelled to do so by mandamus. 1885. Maddox v. Neal, 45 Ark. 121, 125 (55 Am. Rep. 540). The Louisiana act of Feb. 23, 1869, to the extent that it requires Mississippi river carriers 97 ot a common school, equal to those of the the children of the plaintiff as pupils in school for white children, in subdistrict the school of subdistrict number nine, number nine. The plaintiff and his acted in good faith, and without any dechildren reside in the joint district, and sign of depriving them of a common are entitled to and have been offered all school education; but they claim that the advantages and privileges of the joint they may properly insist that the children district school, which, though the school of the plaintiff shall be educated in the house does not stand within subdistrict school established for colored children in number nine is as convenient and access- the joint district, and that they rightfully ible for the children of the plaintiff, as is that in subdistrict number nine to some families of white residents in that subdistrict and a school house in the joint district is as conveniently situated for the families of colored children in that dis refuse them instruction in the school for white children in subdistrict number nine. It is quite apparent from this state of the case, that the proceeding is brought, not because the children of the plaintiff are excluded from the public schools, but trict as the school house in subdistrict to test the right of those having charge of number nine is for the white families them to make a classification of scholars of that district. The board of education or the basis of color. This is the princihave appropriated the full [204] share of pal question in the case, and we propose ail funds, on the basis of the enumeration to consider it without reference to the for school purposes in the township be- question made as to the proper parties to longing to the joint district for colored the proceeding, for, in the view we take children, for the support of such school, of the case, this becomes unnecessary. which is equal in its advantages and privi- The system of public education in Ohio leges to any common school in the town- is the creature of the constitution and ship, and is so sustained each year for a statutory laws of the state. The constilonger period than the school for white tution provides that "it shall be the duty children in subdistrict number nine can of the general assembly to pass suitable be maintained. During all the time the laws to encourage schools and plaintiff insisted on having his children the means of instruction." Sec. 7, Art. 1. fustructed in subdistrict number nine. in Again, it provides that "The general asthe school established for white children, sembly shall make such provision, by an equally good school was open for them texation of otherwise, as, with the income in the joint district etsablished for colored [205] arising from the school trust fund, children, as provided by law, where they will secure a thorough and efficient syscould enjoy the full advantages and privi- tem of common schools throughout the leges of a public common school. The defendants, in refusing to recognize to carry colored passengers in Louisiana in the same cabin with whites, is unconstitutional as an interference with foreign and Interstate commerce. 1878. Hall v. De Cuir, 95 U. S. 485, 504 (24 L. Ed. 554). A restaurant keeper who refuses to serve a colored person with refreshments in a certain part of his restaurant, for no other reason than he was colored, is civilly liable, though he offers to serve him by setting a table in a more private part of the house. 1890. Ferguson v. Gies. 46 N. W. Rep. 718, 720 (82 Mich. 358; 9 L. R. A. 589; 24 Am. St. Rep. 175). The taxing power vested in the legislature is without limit, except such as may be prescribed by the constitution itself. 1876. State v. Lancaster Co. 4 Neb. 537, 541 (19 Am. Rep. 641). The courts have no power to revise or annul an act of the legislature which is the mere ex ercise of its discretionary power, or which Β. Δ. 504): 1889. State v. Denny, 21 N. E. state." Sec. 2. Art. 6. It is left to the discretion of the general lar county to vote on the question of removing the county seat, and to permanently locate the same according to their vote, is not a "special or local law for the benefit of individuals or a corporation," as those terms are used in Sec. 23. Art. 4 of the Alabama constitution: and whether the object of such a law can or cannot be provided for by a general statute, within that provision of the constitution, is a question of legislative discretion, and not of judicial determination. 1877. Clarke v. Jack, 60 Ala. 271, 279. In digests and teat books: Right to an education-separation of races. Cooley, Torts (2 ed.) p. 288, n. 3; 2 Kinkead, Torts Sec. 511, p. 982, n. 22. are valid. What rules and regulations Requirement of general laws. Sutherland, Power of legislature unlimited except by constitution. Cooley, Const. Lim. (5 ed.) p. 129, n. 2. Instances where power to issue bonds denied. Reese, Ultra Vires Sec. 225, p. 297, n. 5. 10 Cent. Dig. 6 Enc. Law (2 ed.) 966, constitutional law: Ib. (2 ed.) 84; civil rights; 18 Ib. (1 ed.) 754, police power: 21 Ib. (1 ed.) 766, 768, schools; 25 Ib. (1 ed.) taxation. An act to authorize the people of a particu-74, 98 assembly, in the exercise of the general are hereby authorized and required to eslegislative power conferred upon it, to tablish, within their respective jurisdetermine what laws are "suitable" to se- dictions, one or more separte schools cure the organization and management for colored children, when the whole of the contemplated system of common | number, by enumeration, exceeds schools, without express restriction, ex- twenty, and when such schools will cept that "no religious or other sect or afford them, as far as practicable, sects shall ever have any exclusive right the advantages and privileges of a comto, or control of, any part of the school mon school education; and all such funds of the state." Sec. 2, Art. 6. schools so established for colored children Under these powers and requirements shall be under the control and manageof the constitution, the general assembly ment of the board of education, or other has attempted to organize, by "suitable laws," an "efficient system of common schools," for the purpose (as expressed in Sec. 63 of the act of 1853) [51 O. L. 449; 8 Curwen 2228; see Sec. 395, Rev. Stat.) "of affording the advantages of a free education to all the youth of this state." school officers who have in charge the educational interests of the other schools; and such schools for colored children shall be continued in operation each year until the full share of all the school finds of the township or district belonging to said colored children, on the basis Under this system the territory of each of enumeration, shall have been expended; organized township, not included in a provided, that when the number of colored city or incorporated village, composes children residing in adjoining townships "one school district for all purposes con- or districts, whether in the same or in difnected with the general interests of edu- ferent counties, shall exceed twenty, the cation in the township," and is "confided boards of education of said townships or to the management and control of a board districts so situated, may form a joint disof education," which is composed of the trict for the education of colored children, several clerks of each of the boards of and said school shall be under the control local directors elected in the subdistricts and direction of the board of education of into which the townships are divided. the township or district in which the The public schools in cities and villages school house is situated. When the whole are confided to the management of boards of education elected therein. It is made the duty of the boards of ed number of colored children enumerated is less than twenty, or when, owing to the great distance they reside form each other, ucation to "prescribe rules and regula- a separate school for colored children is tions for the government of all the common schools within their jurisdiction." They are authorized to establish schools for the study of the German language, to establish graded schools, and to classify the children so as to secure to all an equitable participation in the advantages thereof. They are authorized to change impracticable, the board of education shall set apart the full share of school funds raised on the number of said colored chil-. dren, and the money so set apart shall be appropriated each year for the education of such colored children, under the direction of said board." [207] As to the validity of the provisions and alter the subdistricts, and the number of this section we express no opinion furof scholars assigned to each. The boards ther than is necessary to the determinaof education of adjoining townships are tion of this case, in which it clearly apauthorized to constitute subdistricts out pears that the clauses applicable to it did of parts of their townships. Amongst not operate to exclude the colored children the numerous express powers conferred of that locality from a common school [206] by the statute on boards of educa- education equal to that of the other tion for the regulation of public schools, youth. Were this not the fact, more is that of Sec. 31, authorizing the es- doubt would arise. But where both tablishment of schools for colored child-classes of children, as in the case before ren. The section, as amended in 1864 us, enjoy substantially equal advantages [61 O. L. 32; 1 Sayler 534] (S. & S. 705) [repealed Sec. 7437 Rev. Stat. 1880 (No. 1272)], is as follows: "Section 31. The township boards of education in this state, in their respective townships, and the several other boards of education, and the trustees, visitors and directors of schools, or other officers having authority in the premises, of each city or incorporated village, shall be and they in different schools, and the separate school for colored children is clearly authorized by the statute, the only doubt that arises is as to the constitutional validity of the law which authorizes such separation on the basis of color; and that is the real question in this case. The constitution confers the legislative power of the state upon the general assembly, and "that inculdes all legislative 99 power which the object and purposes of the state government may require, and we must look to other provisions of the constitution to see how far, and to what extent, legislative discretion is qualified or restricted." (Per Gholson, J. in Baker v. Cincinnati, 11 Ohio St. [534] 542.) The constitution contains no restrictions upon the "legislative discretion," in regard to the classification of the youth of the state for school purposes. Those, then, enjoy ing equal privileges with all, cannot complain of a want of power to regulate the manner in which such privileges shall be enjoyed, for in this, as in all cases, the legislature has the power to regulate, for the general good, the mode in which tion on the basis of color was sanctioned, and it was held, that, inasmuch as the statute "is a law of classification and not of exclusion," colored children "are not, as of right, entitled to admission into the common schools set apart under said act for the instruction of white youths." The application, however, made in that case, of the principle settled by it, we are not required to approve or disapprove in this, for in that case there had not been as there was in this, a separate school established for colored children. It would seem, then, that under the constitution and laws of this state, the right to classify the youth of the state for school purposes, on the basis of color, and parties shall enjoy their rights, without to assign them to separate schools for edcoming in conflict with any of those con- ucation, both upon well recognized legal stitutional principles which are estab- principles and the repeated adjudications lished for the protection of private rights. of this court, is too firmly established to But the question of legislative power to authorize the classification of the youth of the state for school purposes on the basis of color, has been determined by the supreme court of this state, both under the present constitution and that of 1802. the United States, and is, therefore be now judicially disturbed. The section of the amendment relied upon is as follows: "Section 1. 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." Sec. 25 of the bill of rights in the latter contains express provisions guaranteeing "equal participation" to all the schools endowed, in whole or in part, from the revenue arising fron donations made by the United States [208] for the support of schools. But it was held in State v. Cincinnati, 19 Ohio 178, that inasmuch as "the whole subject of organizing and regulating schools is very properly left to the general assembly, in the exercise of its legislative powers," an act to authorize the establishment of separate schools for the education of colored children was constitutional; and it was said by Hitchcock, C. J., in that case, that, "as a matter of policy, it is unquestionably better that the white and colored youth should be placed in separate schools, and that the school fund should be divided to them in propor- this amendment. But neither of these Unquestionably all doubts, wheresoever they existed, as to the citizenship of colored persons, and their right to the "equal protection of the laws," are settled by tion to their numbers." After this ex- was denied to them in this state before pression of opinion by that eminent the adoption of the amendment. At all judge, we might at least hesitate to con- events, the statutes classifying the youth clude, that the classification of the youth of the state for school purposes on the of the state for school purposes, on the basis of color, and the decisions of this basis of color, was an unauthorized or un- court in relation thereto, were not at all reasonable exercise of the legislative dis- based on a denial that colored persons cretion in the regulation of the public were citizens, or that they are entitled to schools of the state. But in Van Camp v. Board of Education, 9 Ohio St. 406, the question under consideration was expressly determined by the equal protection of the laws. It would seem, then, that these provisions of the amendment contain nothing conflicting with the statute authorizing the classifica this court, upon the original statute, tion in question, nor the decisions herewhich, so far as material to the question, tofore made touching the point in controwas the same as that under which the versy in this case. Nor do we understand classification was made in this case. In that the contrary is claimed by counsel in that case legislative power of classifiaca- the case. But the clause relied on, in be100 half of the plaintiff, is that which forbids events, the legislative action [211] is any state to "make or enforce any law conclusive, unless it clearly infringes the which shall abridge the privileges or improvisions of the constitution. munities of citizens of the United States." This involves the enquiry as to what At most, the fourteenth amendment privileges or immunities are embraced in only affords to colored citizens an addithe inhibition of this clause. We are not tional guaranty of equality of rights to aware that this has been as yet judicially settled. The language of the clause, however, taken in connection with other provisions of the amendment, and of the constitution of which it forms a part, affords strong reasons for believing that [210] it includes only such privileges or immunities as are derived from, or recognized by, the constitution of the United States. A broader interpretation opens into a field of conjecture limitless as the runge of speculative theories, and might work such limitations of the power of the states to manage and regulate their local institutions and affairs as were never con-! templated by the amendment. If this construction be correct, the ciause has no application to this case, for all the privileges of the school system of this state are derived solely from the con stitution and laws of the state. If the general assembly should pass a law repealing all laws creating and regulat ing the system. it cannot be claimed that the fourteenth amendment could be inter posed to prevent so grievous an abridg ment of the privileges of the citizens of the state. for they would thereby be deprived of privileges derived from the state, and not of privileges derived from the United States. But we need not now further discuss this point, as the true meaning and exact limits of the clause in question are not necessarily involved in this case. For, conceding that the fourteenth amendment not only provides equal securities for all, but guarantees equality or rights to the citizens of a state, as one of the privileges of citizens of the United States, it remains to be seen whether this privlege has been abridged in the case before us. The law in question surely does not attempt to deprive colored persons of any rights. On the contrary it recognizes their right, under the constitution of the state, to equal common school advantages, and secures to them their equal proportion of the school fund. It only regulates the mode and manner in which this right shall be enjoyed by all classes of persons. The regulation of this right arises from the necessity of the case. Undoubtedly it should be done in a manner to promote the best interests of all. But this task must, of necessity, be left to the wisdom and discretion of some proper authority. The people have committed it to the general assembly, and the presumption is that it has discharged its duty in accordance with the best interests of all. At all . that already secured by the constitution of the state. The question, therefore, under consideration is the same that has, as we have seen, been heretofore determined in this state, that a classification of the youth of the state for school purposes, upon any basis which does not exclude either class from equal school advantages, is no infringement of the equal rights of citizens secured by the constitution of the state. We have seen that the law, in the case before us, works no substantial inequality of school privileges between the children of both classes in the locality of the parties. Under the lawful regulation of equal educational privileges, the children ot each class are required to attend the school provided for them, and to which they are assigned by those having the law ful official control of all. The plaintiff, then, cannot claim that his privileges are abridged on the ground of inequality of school advantages for his children. Nor can he dictate where his children shall be instructed, or what teacher shall perform that office, without obtaining privileges not enjoyed by white citizens. Equality of rights does not involve the necessity of educating white and colored persons in the same school, any more than it does that of educating children of both sexes in the same school, or that different grades of scholars must be kept in the same school. Any classification which preserves substantially equal school advantages is not prohibited by either the contravene the provisions of either. state or federal constitution, nor would it There is, then, no ground upon which the plaintiff can claim that his rights under the fourteenth amendment have been in fringed. The action of the defendants was warranted by the authority conferred by the general assembly in the exercise of its constitutional powers. "Where the power which is exercised is legislative in its character, the courts can enforce [212] only those limitations which the constitution imposes, and not those implied restrictions, which, resting on theory only, the people have been satisfied to leave to the judgment patriotism, and sense of Justice of their representatives." Cooley, Const. Lim. [*129]. Mandamus refused. Welch, C. J., and White, McIlvaine and West, JJ., concurred. 40361 0-59-pt. 4-33 |