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has also established and maintained military and naval schools at the expense of the government.
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 is subject to the exclusive control of the constituted authorities of the State. The constitution does not provide the machinery, nor lay down its rule of government or discipline, nor define the terms and conditions of admission. It makes it the imperative duty of the legislature to provide by law the system, and imposes no limitations on the power of the legislature, except that tuition shall be free, and the schools shall be equally open to all; that is, to such classes of persons as the legislature may, in its wisdom, determine.
There being no further restriction upon the legislative power and discretion, it necessarily follows, that in providing for this system of schools, the legislature is left free to fix the qualifications of pupils to be admitted to its benefits, as respects age and capacity to learn; to classify them with reference to age, sex, advancement, and the branches of learning they are to pursue; to provide for the location and building of schoolhouses; and to designate to what schools and in what schoolhouses the different ages, sexes, and degrees of proficiency shall be assigned; for these all concern the good order and success of the system.
It must also follow, that this policy or framework of government for that system vitally concerns and blends itself with the internal affairs of the State, with its happiness and prosperity, its peace and good order, and depends upon the wisdom of the legislature and of the agencies provided by the legislature, acting under its established rules, and comes within the power possessed by every sovereign state, and is clearly without the grants or inhibitions of such amendments to the Constitution of the United States. City City of New York v. Miln, 11 Pet. 139, 140; License Tax Cases, 5 Wal. 470, 471; Lane County v. Oregon, 7 Wal. 76; United States v. Dewitt, 9 Wal. 41; The Collector v. Day, 11 Wal. 124, 125; The Slaughter
House Cases, supra; Bartemeyer v. Iowa, 18 Wal. 133; The State v. Gibson, 36 Ind. 389; The West Chester, etc., R. R. Co. v. Miles, 55 Pa. St. 209; Cooley Const. Lim. 572, 574; Ellis v. The State, 42 Ala. 525; Fifield v. Close, 15 Mich. 505.
This system of common schools must consist of many schools in different localities or geographical divisions; and these schools may be of different grades. In some of these localities or divisions there may be school-houses, and in others In some the school-house or houses may not be sufficient to accommodate all, and the revenue may not be sufficient to provide for them.
In this system, there ought to be and must be a classification of the children. This classification ought to and will be with reference to some properties or characteristics common to or possessed by a certain number out of the whole; and these classes may be put into and taught in different parts of the same school, or different rooms in the same school-house, or different school-houses, as convenience and good policy may require.
This is too reasonable to admit of question; for it concerns the general good, and does not affect the quality of the privilege, but regulates the manner of its enjoyment.
This being settled, what is there to prevent the classification of children, equally entitled to the privileges of the system of common schools, with reference to difference of race or color, if the judgment of the legislature should hold such a classification to be most promotive of, or conducive to, the good order and discipline of the schools in the system, and the interest of the public?
The legislature, under our state constitution as it existed without the limitation imposed upon the sovereign power the State by the fourteenth amendment as hereinbefore stated, had the power to provide for the education only of 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.
It being settled that the legislature must provide for the education of the colored children as well as for the white children, we are required to determine whether the legislature may classify such children, by color and race, and provide for their education in separate schools, or whether they must attend the same school without reference to race or color. In our opinion, 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. In other words, the placing of the white children of the State in one class and the negro children of the State in another class, and requiring these classes to be taught separately, provision being made for their education in the same branches, according to age, capacity, or advancement, with capable teachers, and to the extent of their pro rata share in the school revenue, does not amount to a denial of equal privileges to either, or conflict with the open character of the system required by the constitution. The system would be equally open to all. The tuition would be free. The privileges of the schools would be denied to none. The white children go to one school, or to certain of the schools in the system of common schools. The colored children go to another school, or to certain others of the schools in the system of the common schools. Or, if there are not a sufficient number of colored children 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 number, of school revenue to the best advantage. If there be cause of complaint, the white class has as much, if not greater cause than the colored class, for the latter class receive their full share of the school revenue, although none of it may have been contributed by such class; and when districts can not be consolidated so as to form a school, such class is entitled to receive their full share of the school revenue, according
to number, which shall be expended for their benefit to the best advantage, a privilege which is not granted to the white
In our opinion, there would be as much lawful reason for complaint, by one scholar in the same school, that he could not occupy the seat of another scholar therein at the same time the latter occupied it, or by scholars in the different classes in the same school, that they were not all put in the same class, or by the scholars in different schools, that they were not all placed in one school, as there is that white and black children are placed in distinct classes and taught separately, or in separate schools. The State v. The City of Cincinnati, 19 Ohio, 178; Van Camp v. The Board, etc., 9 Ohio St. 406; Baker v. The City of Cincinnati, 11 Ohio St. 534; The State, etc., v. McCann, 21 Ohio St. 198; Dallas v. Fosdick, 40 How. Pr. 249.
It is to be noted that the appellee, in his petition for a mandate, complains only that his children and grandchildren were excluded from the school where the white children were taught. There are no allegations that there was not a sufficient number of colored children in attending distance to constitute a school, or that the trustee or trustees had failed to provide such other means of education for said children as would use their proportion, according to number, of school revenue to the best advantage. There is a general allegation that the defendants. had neglected, failed, and refused to provide any school in said district, or in any adjoining district near enough for his said children and grandchildren to attend as scholars.
The question is, therefore, squarely presented, whether the children and grandchildren of the appellee were entitled to be admitted and taught in the same school with the white children of the district. The legislature has provided that a separate school shall be provided in each district for the cducation of the colored children therein, where there is a sufficient number of colored children, and where there is a deficiency of colored children to form one district, several districts shall be consolidated. . But if separate schools can not be provided for the colored childreu on account of the smallness
of the number of such children, then, such other provision is to be made by the trustee for their education as the means in his hands will enable him to do.
The legislature has not pointed out or defined what other means shall be provided. There being no averment that the trustee has failed to provide for the education of the children and grandchildren of the appellee, outside of the school for white children, no question arises as to what would be a compliance with such requirement. But if such allegation had been made, it would not have entitled the children and grandchildren of appellee to admission into the white schools, because 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, for the sake of the argument, we were to concede that colored children are, under and by force of the fourteenth amendment, so entitled, the courts can not, in the absence of legislative authority, confer that right upon them. The legislature has declared that when schools can not be provided for the colored children, the trustee shall provide such other means for their education as will use up their full share, according to number, of the school revenue. If the trustee fails in the discharge of this duty, he may be compelled by mandate to discharge the duty imposed upon him by law.
The action of Congress, at the same session at which the fourteenth amendment was proposed to the states, and at a session subsequent to the date of its ratification, is worthy of consideration as evincing the concurrent and after-matured conviction of that body that there was nothing whatever in the amendment which prevented Congress from separating the white and colored races, and placing them, as classes, in different schools, and that such separation was highly proper and conducive to the well-being of the races, and calculated to secure the peace, harmony, and welfare of the public; and if no obligation was expected to be or was imposed upon Congress by the amendment, to place the two races and colors in the same school, with what show of reason can it be pre