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of youth, of one or both sexes, is found in that condition, and it is expedient to organize them into a separate 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. 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 pretences, 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 judgment. It is urged that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded on 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."
We concur in these views, and they are decisive of the present controversy. In order to prevent possible misapprehension, however, we think proper to add that in our opinion, and as the result of the views here announced, the exclusion of colored children from schools where white children attend as pupils, cannot be supported, except under the conditions appearing in the present case; that is,
except where separate schools are actually maintained for the education of colored children; and that, unless such separate schools be in fact maintained, all children of the school district, whether white or colored, have an equal right to become pupils at any common school organized under the laws of the State, and have a right to registration and admission as pupils in the order of their registration, pursuant to the provisions of subdivision fourteen of section 1,617 of the Political Code.
Writ of mandamus denied.
MCKINSTRY, J., concurring specially:
I concur in the judgment on the ground first considered in the opinion of the Chief Justice.
Mr. Justice RHODES did not express an opinion.
CORY ET AL. v. CARTER.
(48 Indiana 327 (1874))
CONSTITUTIONAL LAW.-Schools.-Education of Colored Children.-Separate Schools.-The act of May 13th, 1869 (3 Ind. Stat. 472), entitled "an act to render taxation for common school purposes uniform, and to provide for the education of the colored children of the State," provides that a school tax shall be levied, without regard to the race or color of the owner of the property taxed; that all children, without regard to race or color, shall be included in the enumeration for school purposes, the colored children to be enumerated in separate lists from those in which the other school children are cnumerated, and to be organized into separate schools, having all the rights and privileges of other schools; and if there be not a sufficient number of colored children, within attending distance, to form a separate school for each district, it is provided, that the trustees may consolidate several districts into one; or if there be not a sufficient number of colored children within reasonable distance to thus consolidate, the trustees shall provide such other means of education for colored children as shall use their proportion, according to number, of school revenue to the best advantage.
Held, in a suit by a negro father for a mandate to compel the admission of his children into a school for white children, that this statute is not in conflict with section 19 of article 4 of the state constitution, which provides, that every act shall "embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title." Held, also, that the statute is not in conflict with section 23 of article 1 of the state constitution, which declares, that "the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens." Held, also, that said statute is not in conflict with section 1 of article 8 of the state constitution, which makes it the duty of the General Assembly "to provide by law for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all." Held, also, that said statute is not in conflict with section 2 of article 4 of the Constitution of the United States, which declares, that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."
Held, also, that said statute is not in conflict with the thirteenth or fourteenth amendment of the Constitution of the United States, or with earlier amendments, or with the act of Congress of April 9th, 1866, known as the "Civil Rights Bill."
SAME.-Thirteenth Amendment of Constitution of United States.-The thirteenth amendment abolished slavery within the limits of the United States. SAME.-Fourteenth Amendment.-First Clause.-The first clause of the fourteenth amendment made negroes citizens of the United States, and citi
sens of the State in which they reside, and thereby created two classes of citizens, one of the United States and the other of the state. SAME-Second Clause.-The second clause of said amendment prohibits the states from abridging the privileges and immunities of citizens of the United states. This clause places the privileges and immunities of citizens of the United States under the protection of the Federal Constitution, and leaves the privileges and immunities of citizens of a state under the protection of the constitution and laws of the state. The second clause simply contains an inhibition of power to the states, and does not confer upon the Federal Government power to protect or enforce, by legislation, the privileges and immunities of citizens of a state.
SAME-Third and Fourth Clauses.-The third and fourth clauses of the fourteenth amendment only prohibit the states from doing acts which they were prohibited from doing by other clauses of the Federal Constitution.. SAME.-Thirteenth, Fourteenth, and Fifteenth Amendments-Limitation of Power of State.-The thirteenth, fourteenth, and fifteenth amendments to the Federal Constitution impose the following limitations and restrictions upon the sovereign power of the State of Indiana: 1. The State cannot in the future, while a member of the Federal Union, change her constitution so as to create or establish slavery or involuntary servitude, except as a punishment for crimes whereof the party shall have been convicted. 2. The State cannot deny to a citizen of the United States or deprive him of those national rights, privileges, and immunities which belong to him as such citizen. 3. The State must recognize as its citizens any citizen of the United States who is or becomes a bona fide resident therein. 4. The State must give to each citizen of the United States, who is or becomes a bona fide citizen therein, the same rights, privileges, and immunities secured by her constitution and laws to her white citi
SAME.-Common Schools.-The system of common schools in this State has its origin in, and is provided for by, the constitution and laws of this State. It is purely a domestic institution, and subject to the exclusive control of the constituted authorities of the State. The Federal Constitution does not provide for any general system of education to be conducted and controlled by the National Government, nor does it vest in Congress any power to exercise a general or special supervision over the states on the subject of education. SAME.-Uniformity of Schools-Under our constitution, our common school system must be general, uniform, and equally open to all, but uniformity will be secured when all the schools of the same grade have the same system of government and discipline, the same branches of learning taught, and the same qualifications for admission.
SAME.-The legislature, under our state constitution, as it existed without the limitations imposed upon the sovereign power of the State by the fourteenth amendment, had the power to provide for the education of only
the white children of the State; but since its ratification no system of public schools would be general, uniform, and equally open to all, which did not provide for the education of the colored children of the State. SAME.-The classification of scholars, on the basis of race or color, and their education in separate schools involve questions of domestic policy which are within the legislative discretion and control, and do not amount to an exclusion of either class. SAME.-Power of Courts.-The legislature has not provided for the admission of colored children into the same schools with the white children, in any contingency; and even if the fourteenth amendment absolutely required their admission, the courts cannot, in the absence of legislative authority, confer that right upon them.
SAME. The legislature has the power to provide for either separate or mixed schools, but it having failed to provide for mixed schools, the courts must execute the law as it comes from the law-making department of the government. If the act of May 13th, 1869, should be held unconstitutional and void, there would then be no law providing for the enumeration and education of the colored children of the State, and they would be left without any provision whatever for their education. SAME.-Construction of Statute.-There being no averment that the trustee had failed to provide for the education of the children of the plaintiff outside of the schools for the white children, no question arose as to what would be a compliance with such provision of the statute.
From the Marion Superior Court.
N. B. Taylor, F. Rand, and E. Taylor, for appellants. J. W. Gordon, T. M. Browne, and R. N. Lamb, for appellee.
BUSKIRK, J.-This was a proceeding by mandate, on the part of the appellee against the appellants. The appellee, in his petition, alleged that he was a citizen of the State of Indiana and resided in school district number two, in Lawrence township, Marion county, in the said State, and was a taxpayer therein; that he was the father of two children, Mary and Edward Carter, and the grandfather of Lucy and John Carter, all of whom resided with him; that he was a negro of African descent, and that his said children and grandchildren were all negroes of the full blood and of the same descent; that his children and grandchildren were respectively of the age that entitled them to the benefits of the common schools in the said district; that there was a common school for white