children in progress in said district, and that his said children. and grandchildren presented themselves at the school-house in said district and demanded admission and to be taught therein with the white children, but were refused admittance by the appellants Beaver and Craig, the director and teacher of said school, for the reason that the said school was a school for white children, and not for negro children; that after the refusal aforesaid, he caused to be served upon the appellants a written request and demand that his said children and grandchildren should be received and taught in the said school with the white children of said district, but they were refused admission solely upon the ground that they were negroes; that said appellants and all other persons have wholly neglected, failed, and refused, and still neglect, fail, and refuse, to provide any school in said district, or in any adjoining district, near enough for said children or grandchildren to attend as scholars; and that by reason of the premises his said children and grandchildren are denied all opportunity to attend any school in said district or elsewhere in the neighborhood, as in right and law they are entitled to do.

There is no allegation that the trustee of said school district number two had failed or refused to provide the means of education for such children within the district, outside of the said school for white children, to the extent of their proportion, according to number, of the school revenues of the said district.

The aid of the court was requested to declare the right of admission of said negro children into the school for white children, and to compel the appellants to admit them.

An alternate writ was issued against the appellants, requiring them to admit such children into the school in said district for white children or appear and show cause why they should not so admit such children.

The appellants appeared and filed separate demurrers to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, but the demurrers were overruled; and the appellants refusing to plead further, but elect

ing to stand by their exceptions to the rulings of the court, the court gave judgment for a peremptory writ of mandate.

The appellants appealed to the general term, where the judgment of the special term was affirmed.

The error assigned is, that the superior court, in general term, erred in affirming the judgment of the court in special

term..

The question presented for our decision is, whether the court below erred in overruling the demurrer to the complaint, the correct solution of which will depend upon the proper construction to be placed upon the constitution and statutes of this State and the Constitution of the United States; and as preliminary to the consideration of the grave constitutional questions arising in the record, we proceed to inquire what provisions the legislature has made for the education of the white and colored children of the State.

The act of March 6th, 1865, provided for the annual assessment and collection of a tax on the property, real and personal, in the State (except that owned by negroes and mulattoes), for supporting a general system of common schools in the State. It provided for the enumeration each year of the white children within the respective townships, towns, and cities in the State, between the ages of six and twenty-one years, exclusive of married persons. It provided the officers and agencies for the system, the mode and means of carrying it on, for locating and establishing schools, and carrying them on, for building school-houses, and employing teachers, etc. It was essentially white-none but white children between the named ages, and who were unmarried, were entitled to its privileges. 3 Ind. Stat. 440-472; Draper v. Cambridge, 20 Ind.

268.

At the session of the legislature of this State next after the ratification of the fourteenth amendment to the Constitution of the United States, an act was passed by the General Assembly of this State, entitled "an act to render taxation for common school purposes uniform, and to provide for the education

of the colored children of the State," which was approved May 13th, 1869, and is as follows:

"Section 1. Be it enacted by the General Assembly of the State of Indiana, that in assessing and collecting taxes for school purposes under existing laws, all property, real and personal, subject to taxation for State and county purposes, shall be taxed for the support of common schools without regard to the race or color of the owner of the property.

"Sec. 2. All children of the proper age, without regard to the race or color, shall hereafter be included in the enumeration of the children of the respective school districts, townships, towns and cities of this State for school purposes; but in making such enumeration the officers charged by law with that duty shall enumerate the colored children of proper age, who may reside in any school district, in a separate and distinct list from that in which the other school children of such school district shall be enumerated.

"Sec. 3. The trustee or trustees of each township, town or city, shall organize the colored children into separate schools, having all the rights and privileges of other schools of the township: Provided, there are not a sufficient number within attending distance, the several districts may be consolidated and form one district. But if there are not a sufficient number within reasonable distance to be thus consolidated, the trustee or trustees shall provide such other means of education for said children as shall use their proportion, according to numbers, of school revenue to the best advantage.

"Sec. 4. All laws relative to school matters, not inconsistent with this act, shall be deemed applicable to colored schools.

Sec. 5. Whereas an emergency exists for the immediate taking effect of this act, the same shall be in force from and after its passage." 3 Ind. Stat. 472.

Prior to the passage of such act, the assessment of taxes for school purposes had been confined to the property of white persons. The first section provided for the levy and collection

of a tax for school purposes upon all the property within the State subject to taxation, without regard to the race or color of the owner.

The second section adds to the enumeration directed in Bection 14 of the act of March 6th, 1865, all colored children of the proper age, within the State, and directs them to be enumerated at the same time with the white children, but in a separate list or class from that in which the white children are enumerated.

The third section commands the trustees of each township, town, or city in the State to organize the colored children therein into separate schools, with all the rights and privileges of white schools in the particular township, town, or city. But if the number of colored children within attending distance are not sufficient to organize a school, the trustees may consolidate several districts into one, for that purpose. And if the number of colored children within reasonable attending distance are not sufficient to be thus consolidated, the trustees shall provide such other means of education for such colored children as shall use their proportion, according to numbers, of the school revenue to the best advantage.

The fourth section makes all laws relative to school matters, not inconsistent with the provisions of the act, applicable to colored schools.

It is, in the first place, claimed that the act of May 13th, 1869, is in conflict with section 19 of article 4 of our constitution, which provides, that every act shall " embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title."

We think the subject of the act is common schools, and that the taxation of the property of all persons for school purposes and the enumeration of, and providing schools for, the colored children of the State are properly connected with the subject of the act. We have so frequently placed a construction the above quoted section that we do not deem it necessary to re-examine the question. We cite the late case of The State,

upon

ex rel. Pitman, v. Tucker, 46 Ind. 355, where many of the cases are cited.

It is very plain and obvious to us, that by the supplemental act of May 13th, 1869, the legislature has provided for the education of the white and colored children of the State in separate schools, and the question presented for our decision is, whether such legislation is in conflict with the constitution of this State or the Constitution of the United States.

It is contended that the act in question is repugnant to section 23 of article 1, and section 1 of article 8, and they are: "Section 23. 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." 1 G. & H. 33.

Section 1, article 8 (1 G. & H. 48), declares, that "knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government, it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide by law for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all."

It is important that we should settle in advance the rules by which we are to be guided in placing a construction upon the constitutional provisions above quoted.

In The State v. Gibson, 36 Ind. 389, we held that it was settled by very high authority, that, in placing a construction upon a written constitution or any clause or part thereof, a court should look to the history of the times, and examine the state of things existing when the constitution, or any part thereof, was framed and adopted, to ascertain the old law, the mischief, and the remedy. The court should also look to the nature and objects of the particular powers, duties, and rights in question, with all the aids and lights of cotemporary history, and give to the words of each provision just such operation and force, consistent with their legitimate meaning, as will fairly secure the end proposed. Kendall v. The United