tended that it has such a compelling power upon the sovereign and independent states forming the Federal Union?

We refer to the legislation of Congress relative to schools in the District of Columbia, at the first session of the ThirtyNinth Congress, and the third session of the Forty-Second Congress.

On the 23d day of July, 1866, the act of Congress, entitled "an act relating to public schools in the District of Columbia," took effect. It requires the cities of Washington and Georgetown to pay over to the trustees of colored schools of said cities such a proportionate part of all moneys received or expended for school or educational purposes in said cities, including the cost of sites, buildings, improvements, furniture, and books, and all other expenditures on account of schools, as the colored children between the ages of six and seventeen years, in the respective cities, bear to the whole number of children, white and colored, between the same ages. Acts sess. 1, 39th Cong. 222.

This was followed at the same session of Congress by an act, entitled "an act donating certain lots in the city of Washington for schools for colored children in the District of Columbia," approved July 28th, 1866, which authorized and required the Commissioner of Public Buildings to convey certain described lots, in the city of Washington, which belonged to the United States, to the trustees for colored schools for the cities of Washington and Georgetown in said District, for the sole use of schools for colored children in that District; the said lots having been designated and set apart by the Secretary of the Interior to be used for colored schools; and the said lots whenever converted to any other use to revert to the United States. Acts sess. 1, 39th Cong. 354.

At its 42d session an act was passed, entitled "an act to amend an act entitled 'An act governing the colored schools of the District of Columbia,"" approved March 3d, 1873, which fixes the number of the board of trustees of schools for colored children in the District of Columbia, their mode of

appointment, their duties, etc., and authorizes the Governor of the District to appoint a superintendent of schools for colored children, who is to receive a salary of twenty-five hundred dollars annually, for his services, etc., and directs the proportion of school money then due, or afterward to become due, to the board of trustees of colored schools from the cities of Washington and Georgetown, to be paid to the treasurer of said board, and not to the trustees, as provided in the act of July 23d, 1866. Acts sess. 3, 42d Cong. 260.

This legislation of Congress continues in force, at the present time, as a legislative construction of the fourteenth amendment, and as a legislative declaration of what was thought to be lawful, proper, and expedient under such amendment, by the same body that proposed such amendment to the states for their approval and ratification.

We are very clearly of the opinion that the act of May 13th, 1869, is constitutional, and that while it remains in force colored children are not entitled to admission into the common schools which are provided for the education of the white children.

In our opinion, the court below erred in affirming the action of the court in special term; and the judgment is reversed, with costs, and the cause remanded to the court below, with

directions to that court to overrule the judgment of the court in special term in overruling the demurrer to the petition for a mandate.

OSBORN, J.-I am inclined to think that the allegations in the complaint are not sufficient to entitle the appellee to a mandate, and that the judgment of the court below ought to be reversed. But there is very much in the foregoing opinion in which I do not concur.

If I desired to do so, I could not, during the short time that I am to remain in my present position, properly and satisfactorily consider the questions discussed, and must therefore content myself with this qualified dissent.

ON PETITION FOR A REHEARING.

BUSKIRK, C. J.--The learned counsel for appellee has filed a very earnest, able, and elaborate brief in support of the petition for a rehearing. We have re-examined the questions involved and decided in the original opinion, and are entirely satisfied with the judgment rendered and the grounds upon which it was placed.

The petition is overruled.

THE PEOPLE, ex rel. THERESA B. KING, by Guardian, etc., Appellant, v. JOHN GALLAGHER, Principal, etc., Respondent.

(48 New York 438 (1883)

Under the provisions of the Common School Act of 1864 (§ 1, tit. 10, chap. 555, Laws of 1864) authorizing the establishment of separate schools for the education of the colored race, in cities and incorporated villages, the school authorities therein have power, when, in their opinion, the interests of education will be promoted thereby, to establish schools for the exclusive use of colored children; and when such schools are established and provided with equal facilities for education, they may exclude colored children from the schools provided for the whites (DANFORTH and FINCH, JJ., dissenting).

The same power is given to the board of education of the city of Brooklyn by the acts relating to the public schools of that city (Chap. 143, Laws of 1850; § 1, tit. 16, chap. 863, Laws of 1873). (Danforth and FINCH, JJ., dissenting.)

The establishment of such separate schools for the exclusive use of the different races is not an abridgment of the "privileges or immunities" preserved by the fourteenth amendment of the Federal Constitution, nor is such a separation a denial of the equal protection of the laws given to every citizen by aid amendment.

The said statutory provisions, therefore, were not abrogated by said amendment (DANFORTH and FINCH, JJ., dissenting).

It seems that the "privileges and immunities" which are protected by said amendment are those only which belong to the citizen as a citizen of the United States; those which are granted by a State to its citizens and which depend solely upon State laws for their origin and support are not within the constitutional inhibition, and may lawfully be denied to any class or race by the State at its will and discretion (Danforth and FINCH, JJ., dissenting).

It seems, also, that as the privilege of receiving an education at the expense of the State is created and conferred only by State laws, it may be granted or refused to any individual or class at the pleasure of the State (DANFORTH and FINCH, JJ., dissenting).

Said statutory provisions were not repealed by the Civil Rights Act of 1873 (Chap. 186, Laws of 1873), they do not deprive colored persons of the "full and equal enjoyment of any accommodation, advantage, facility or privilege," within the meaning of said act; nor do they discriminate in any manner against them (DANFORTH and FINCH, JJ., dissenting). All that is required by said act, or by the constitutional amendment, if applicable, is the privilege of obtaining an education under the same advantages, and with equal facilities, as those enjoyed by any other individual. Equality, and not identity of rights and privileges, is what is guaranteed to the citizen (DANFORTH and FINCH, JJ., dissenting).

40361 0-59-pt. 4-37

Board of Education : Tinnon (26 Kans. 1), Clark v. Board of Directors, etc. (24 Iowa, 266), Smith v. Directors, etc. (40 id. 518), Dove v. Ind. School Dist. (41 id. 689), People, ex rel. Longress, v. Board of Education (101 Ill. 808: 40 Am. Rep. 196), People v. Board of Education (18 Mich. 400), C. R. R. Co. v. Green (86 Penn. St. 421; 27 Am. Rep. 718), Decuir v. Benson (27 La. Ann. 1), Donnell v. State (48 Miss. 680; 12 Am. Rep. 375), Coger v N. W. Union Packet Co. (37 Iowa, 145), R. R. Co. v. Brown (17 WaH. 446), Strauder v. W. Va. (100 U. S. 303), distinguished.

(Argued June 18, 1883; decided October 9, 1883.)

APPEAL from order of the General Term of the City Court of Brooklyn, which affirmed an order of Special Term denying a motion for a writ of mandamus requiring defendant, as principal of public school No. 5, in the city of Brooklyn, to admit the relator to said school.

The material facts are stated in the opinion.

F. W. Catlin for appellant. Defendant was the proper person against whom to ask for a mandamus. (77 N. Y. 503507; Morse on Banking, 137; People v. Throop, 12 Wend. 184; High's Extraordinary Legal Remedies, 217, § 311) The action of the committees of the board of education and the principal of the school in excluding relator on the ground of color was unauthorized. (Laws of 1850, chap. 148, § 6; Thompson v. Schermerhorn, 6 N. Y. 92; Birdsall v. Clark, 73 id. 73; People v. Throop, 12. Wend. 184; People v. Board of Education, 18 Mich. 400; Ward v. Flood, 48 Cal. 36; 17 Am. Rep. 405; Dallas v. Fosdick, 40 How. Pr. 254; Cory v. Carter, 48. Ind. 327; 17 Am. Rep. 738; Beaty v. Knowles, 4 Pet. 152; Wright ý. Briggs, 2 Hill, 77; People v. Lambier, 5 Den. 9; Sharp v. Spier, 4 Hill, 76.) The prohibitions of the fourteenth amendment are addressed to the States, and have the effect of invalidating any State law in conflict with them. (Ex parte Virginia, 10 Otto, 339-346; Virginia v. Rives, id. 313-318; Neal. Delaware, 13 id. 370; Strauder v. W. Virginia, 10 id. 303, 809; SlaughterHouse Cases, 16 Wall. 36; Board of Education v. Tiñnon, 25 Alb. L. J. 289; R. R. Co. v. Brown, 17 Wall. 446; Board of Education v. Tinnon, 26 Kans. 1; 25 Alb. L. J. 289.) The