So far as they are concerned, no rule of equality is violated-for while they are excluded from the schools for the white, the white are excluded from the school provided for the negro. (Vide Act of April 4, 1870, Sacs. 53-56: Swett's Report, p. 13).

The

This Act of the Legislature is constitutional. Constitution of California on this subject differs materially from most of our State Constitutions. It makes it the duty of the Legislature to "provide for a system of common schoools," thus leaving that body to exercise its own discretion, and to provide such system as it deems wise and just.

The Act of April 4th, 1870, embodies that system; it is the expression of the sovereign will, and is wise, just and politic. (Roberts v. Boston, 5 Cush. 198, 206; The State ex rel. elc., v. Cincinnati, 19 O. 178, 197; Van Camp v. Biard of Education, 9 O. State, 406, 414; Westchester & Phil. R. R. v. Miles, 55 Penn. 212; People, etc., v. Board of Education, 18 Mich. 400, 412; State of Nev. ex rel. etc., v. Duffy, 7 Nevada, 342; Clark v. Board of Directors, 24 Iowa, 272.)

Independent of all such considerations, under the police power of the State, the Legislature would have the right, by way of classification, to provide separate schools for the white and black, confining each to its appointed sphere.

This power is most comprehensive. It is inherent in every state, and inalienable. It exerts itself upon persons and property, whenever the safety and welfare of society is endangered. It is exercised for the general comfort, health and prosperity of the people, and for the preservation of the morality, peace and dignity of the commonwealth. (Cooley's Con. Lim. 572, 574, 576, note 2, 33, note 4.)

Confining colored children to schools specially organized for them, does not impair or abridge any right, conceding that the right exists; it is a simple regulation of rights, with a view to the most convenient and beneficial enjoyment of them by all, and deprives no one of what is justly his own. (Cooley's Con. Lim. 596-7.)

By the Court, WALLACE, C. J.:

This is an application made to this Court for a writ of

mandamus directing the defendant to receive the petitioner as a scholar in the school of which he is the principal. The petition for the writ is as follows:

Harriet A. Ward, being sworn, says: "I am the mother of Mary Frances Ward, who is under the age of fourteen years-namely, of the age of between eleven and twelve years. I am the wife of A. J. Ward, and by that marriage the mother of said Mary Frances Ward. We are all of African descent, colored citizens of the United States and of the State of California, and at present, and continuously for thirteen years now last past, residents of the city and county of San Francisco, and for six months last past, and now, residing at No. 1,006 Pacific street, in the city and county of San Francisco. The city and county of San Francisco is not now, nor for the year last past has been divided into school districts; but by law, and also by the custom adopted and established by the Board of Education of said city and county, pupils residing therein have a right to be received as such at the public school nearost their residence, in case such school is not full, and they have made sufficient progress to be received therein.

"The nearest public school to our said residence in said city and county for six months now last past, and now, is the so-called Broadway Grammar School, on Broadway street, in said city and county, between Powell and Mason streets; a public school under the control of the Board of Education of said city and county, sustained by taxes raised in said city and county for the support of public schools therein, and at the time the application hereinafter mentioned was made, was, and ever since then has been, and is now, in charge of Noah F. Flood as Principal thereof, appointed thereto by, and holding office as such under the said Board of Education.

"On or about the 1st day of July, A. D. 1872, by the consent and direction of my said husband, I took the said Mary Frances Ward with me to the said Broadway Grammar School, the same being in session, and there found the said Noah F. Flood, then and there being such Principal of said school, and then and there as such being the proper and only

person to whom to make application for the admission of pupils to the same, and presented her to him, as a pupil asking to be admitted as such to said school. The said school then and there was not full, nor was there any good or lawful reason why the said Mary Frances Ward should not be received therein as such pupil, as aforesaid. But the said Noah F. Flood, instead of making inquiries respecting the said Mary Frances Ward, her residence, citizenship, or in any other respect, or examining her as to her proficiency, at once politely, but firmly and definitively declined to entertain the said application, or to admit the said Mary Frances Ward as such pupil, assigning, as the only reason for such action and refusal, the fact that she was a colored person, and that said Board of Education had established and assigned separate schools for such colored persons, and that he was sorry to be compelled for that reason to adopt that course of action on his part. And I aver that the reason so assigned was true in fact, and was in truth and fact the only reason existing for such action and refusal of the said Noah F. Flood.

"The said Broadway Grammar School was then and is now of the description called a graded school, which signifies that the pupils in it are classified into several distinct grades, according to the instruction which they may respectively require; those of the lowest grade receiving instructions nearly of a primary character; and those of the highest grade receiving instruction of a somewhat thorough character in arithmetic, grammar, and other studies. The said Mary Frances Ward, at the time of said application, had already received sufficient instruction to enable her to enter the lowest grade of said grammar school, but not the highest grade. "HARRIET A. WARD."

The answer of the defendant is as follows:

"Now comes Noah F. Flood, and for his answer in the above entitled action or proceeding, admits that he is and was on or about the 1st day of July, 1872, the Principal of the Broadway Grammar School, in the city and county of San Francisco; admits that Harriet A. Ward, in said action or proceeding mentioned, is the mother of Mary

Frances Ward, a minor under the age of fourteen years, and that she is the wife of A. J. Ward; admits that petitioner and her said mother and father are of African descent, and colored citizens of the United States, and admits their residence as stated in the affidavit of Harriet A. Ward in said action or proceeding; admits that the said city and county of San Francisco is not now, nor for the year last past has been divided into school districts; and admits that by law, and also by the custom adopted and established by the Board of Education of said city and county, white pupils residing therein have a right to be received as such at the public school nearest their residence, in case such school is pot full, and they have made sufficient progress to be received therein, but denies that children of African descent have a right to be admitted into any public school other than those separately organized and provided for them.

"Further answering, said defendant admits that the nearest public school to the residence of petitioner has been for six months last past, and now is, the said Broadway Grammar School; and admits that the same is a public school under the control of the Board of Education of said city and county, sustained by taxes raised in said city and county for the support of public schools therein, and was on or about the 1st day of July, 1872, and ever since has been, and now is, in charge of this defendant, as Principal thereof, appointed thereto by, and holding office as such under the said Board of Education.

"He admits that on or about the 1st day of July, 1872, the said Harriet A. Ward, by the consent and direction of her said husband, took the petitioner with her to the said Broadway Grammar School, and that the same was then in session; that said Harriet then and there presented the said petitioner to this defendant as a pupil asking to be admitted as such to said school, this defendant then and there being such Principal as aforesaid. He admits that said school was not then and there full, but denies that there was no good or lawful reason why said petitioner should not be received in said school as said pupil as aforesaid, and denies

that he had any right or authority to admit her as such pupil, or that she had any right to be admitted as such pupil; but on the contrary, avers that there was a good and sufficient reason in this, that he was appointed as such Principal by the said Board of Education, and in refusing to receive the petitioner as a pupil, he acted under and in accordance with the rules and regulations adopted and prescribed by the said Board, one of which is as follows:

'Sec. 117. Separate Schools.-Children of African or Indian descent shall not be admitted into schools for whito children, but separate schools shall be provided for them in accordance with the California School Law.'

"And this defendant avers that in accordance with said rule and the Act of the Legislature therein referred to, cutitled 'an Act to amend an Act to provide for a system of common schools,' approved April 4th, 1870, two separate schools were and are provided for colored children, with able and efficient teachers, and which afford equal advantages and are conducted under the same rules and regulations as those provided for the education of white children.

"Further answering, defendant admits that the said Broadway Grammar School was then and is now of the description called a graded school, which signifies that the pupils in it are classified into distinct grades, according to the instruction which they may respectively require; but this defendant avers that the lowest grade in said Grammar School then was and now is the sixth grade, into which the petitioner had not received sufficient instruction to enable her to enter; and further avers that the said Mary Frances Ward was, prior to and at the time of her said application, and now is a member of and pupil in a school provided for colored children or children of African descent, under the said Act of the Legislature of the State of California, and in the seventh grade of said school.

"And this defendant further avers that the said Mary Frances, in applying for admission into the said Broadway Grammar School, did not present to him, as the Principal thereof, any certificate of transfer, as required by the said rules and regulations as adopted by the said Board of Education, one of which rules is as follows: