Civil Rights Act of this State, passed in 1873 (Chap. 186`, repealed and annulled any law existing at the date of its passage, if any then existed, which authorized the exclusion of children from the public schools, or discrimination against them, solely on account of color. (Comm. on Written Laws, §§ 82, 192; Board of Education v. Tinnon, 26 Kans. 1; 25 Alb. L. J. 288; Clark v. Board of Directors, 24 Iowa, 266; Smith v. Directors, 40 id. 518; Dove v. School District, 41 id. 689; People, ex rel., v. Board of Education, 101 Ill. 308; People v. Board of Education, 18 Mich. 400; Cent. R. R. Co. v. Green, 86 Penn. St. 421; Decuir v. Benson, 27 La. Ann. 1; Donnell v. State, 48 Miss. 680; Coger v. Un. Packet Co., 37 Iowa, 145.)

F. E. Dana for respondent. The granting of a writ of mandamus is in the discretion of the court to which the application is made. (Matter of Sage, 70 N. Y. 220; People, ex rel. Faile, v. Ferris, 76 id. 326; Matter of Gardner, 68 id. 467; Ex parte Fleming, 4 Hill, 581; People v. Common Council, 78 N. Y. 56; Van Rensselaer v. Sheriff, 1 Cow. 501; People v. Contracting B'd, 27 N. Y. 378.) It will issue only in a case of clear and not of doubtful right. (Matter of Gardner, 68 N. Y. 467; People v. Croton Aqueduct, 49 Barb. 259; Reeside v. Walker, 11 How. [U. S.] 272; People v. Leonard, 74 N. Y. 443; People v. Common Council, 78 id. 56.) Generally it will not issue when the relator has a legal remedy by action for damages. (Matter of Gardner, 68 N. Y.' 467; People v. Sup'rs, 11 id. 563; People v. Mayor, 10 Wend. 393; People v. Easton, 13 Abb. [N. S.] 159; Robinson v. Chamberlain, 34 N. Y. 389; Howland v. Eldridge, 43 id. 457; Angida C、 P. v. People, 18 Wend. 79; People v. Leonard, 74 N. Y. 443; People v. Common Council of Troy, 78 id. 33.) This proceeding was improperly brought against the respondent, who was but a mere employe of the board of education of the city of Brooklyn. (Matter of Gardner, 68 N. Y. 467.) The board of education had the right to establish separate schools for colored children and to assign colored

children living contiguously thereto to attend them. (Laws of 1873, chap. 420; Laws of 1864, chap. 555, § 12; Laws of 1850, chap. 143, § 4; Laws of 1843, chap. 63; Laws of 1845, chap. 306; Laws of 1849, chap. 140; Laws of 1864, chap. 155, title 13, § 14; title 7, article 5, § 39; Gilmour's Code Public Instruction, 385.) Neither the Constitution nor the fourteenth amendment affect the rights of the relator or apply to this case. (Slaughter-House Cases, 16 Wall. 36; Hall v. DeCuir, 5 Otto, 485; Missouri v. Lewis, 101 U. S. 22; People v. Easton, 13 Abb. [N. S.] 159; State v. McCann, 21 Ohio, 198; Cory v. Carter, 17 Am. Rep. 738, 766; Acts session 1, 39 Cong. 222, July 23, 1866; Acts session 1, 39 Cong. 354, July 28, 1866; Acts session 3, 42 Cong. 260, March 3, 1873; Wood v. Flood, 17 Am. Rep. 405; Dallas v. Fosdick, 40 How. 249; State v. Duffy, 8 Am. Rep. 713; Roome's Law of Corporations, § 323; 10 Federal Reporter, 730; Roberts v. City of Boston, 59 Mass. 198; B'd of Edn. of Ottawa v. Turner, 25 Alb. L. J. 288.) The act of 1873 (Chap. 186), known as the Civil Rights Act does not interfere with the right of the board of education to establish colored schools and assign colored children thereto. (People, ex rel. Johnson, v. Welch, Sept., 1875, MSS. op.; People v. Easton, 13 Abb. [N. 8.] 159.)

RUGER, Ch. J. The relator applied to the court below at a Special Term of the City Court of Brooklyn for a writ of mandamus against the respondent, then the principal of public school No. 5 of that city, after a refusal, to compel him to admit her to the privileges of a pupil at such school, which application was denied. This appeal is brought from the affirmance of such decision by the General Term of that court.

The relátor is a colored female about twelve years of age, residing in public school district No. 5, of the city of Brooklyn, and would be entitled to attend that school but for the regulations of its board of education. By such regulations, schools for the exclusive use of its colored population of equal grade and educational advantages with its other schools were established at convenient and accessible points, and the colored SICKELS-VOL. XLVIII. 56

children residing in said city were duly assigned to the respective schools provided for them. One of these schools, and being that which the relator was assigned to attend, was located in the same school district in which she resided.

These schools have been presumably established and conducted for a period of years, and their adaptation to the accomplishment of the most efficient purposes of education has been subjected to the test of actual experiment and trial without any claim being made but that the system adopted has contributed to the best interests of both classes. The relator, however, complains, not but that she is receiving the highest educational advantages that the city is capable of giving her, but that she is not receiving those facilities at the precise place which would be the most gratifying to her feelings.

The question broadly stated presented by this appeal is whether the school authorities of that city have the right to classify the pupils in such schools in the administration of their authority to regulate the methods of education pursued therein, or whether the provisions of the Constitution of the United States require that each person attending such school, shall, without regard to sex, color or age, be awarded upon demand the same privileges in the same places and under the same circumstances as those enjoyed by any other scholar therein.

Such school authorities have determined, in the exercise of their discretion, that the interests of education may be best promoted by the instruction of scholars of different races in separate schools; and the question is now presented whether they are debarred by the law of the land from adopting those methods which in their judgment are the wisest and most efficient to accomplish the purpose intended.

Under our common school system its supervising authorities are necessarily invested with the exclusive right of determining all such questions as pertain to the exercise of the discretionary powers conferred upon them, and the natural and legal presumption in favor of the conscientious performance of official duty requires us to assume, in the absence of any evidence to

the contrary, that the classification in question inures to the educational advantage of the community.

That our common school system should be administered to the best advantage for all interests the most casual reflection as well as the uniform practice in educational institutions shows that its school authorities should be vested with large discretionary power in arranging and classifying the various departments of public instruction, to adapt them to the diversified capacity, disposition and needs of the numerous persons they are required to govern and instruct, and any arbitrary interference with the exercise of such discretion, it is obvious, must be productive of injury to the cause of education.

It would be unfortunate if it should be found that any imperative rule of law prevents those who are charged with the management of the common schools of the State, from adopting such arrangements for instruction as their experience had shown to be adapted to the highest educational interests of the people. Upon referring to the various statutes on the subject, we find that the regulations referred to are fully authorized by the laws of this State relating to the management and control of its public common schools. Section 1 of title 10 of chapter 555 of the Laws of 1864 specially provides for the establishment of separate schools for the education of the colored race, in all of the cities and villages of the State, wherever the school authorities of such city or village may deem it expedient to do so. The act containing this provision has been, since its enactment, frequently before the legislature for amendment, and the provision in question has apparently been frequently approved by them, and now remains unchanged. The system of authorizing the education of the two races scparately has been for many years the settled policy of all departinents of the State government, and it is believed obtains very generally in the States of the Union.

The common schools of Brooklyn are organized and conducted under a special act relating to that city, contained in chapter 143 of the Laws of 1850, which confers upon the board of education of such, city "the entire charge and

direction of all its public schools," and the right to "make its own by-laws, keep a journal of its proceedings, define the duties of its officers and committees and prescribe such rules and regulations for instruction and discipline in the said public schools as are not inconsistent with the laws of the State." Section 4 of this act reads as follows: "The board of education shall have power to organize and establish schools for colored children, and such evening schools as it may from time to time deem expedient, and shall adopt the necessary rules for the government of the same." "No person shall be prohibited from attending the evening schools on account of age." The conferred upon powers the board of education by this act were, by section 1, title 16, chapter 863 of the Laws of 1873, made applicable to the reorganized department of public institutions for such city, created by said act.

This law has, therefore, been in existence for over thirty years, and its operation and effect have hitherto been found unobjectionable and apparently satisfactory to all parties. It thereby appears that the board of education of Brooklyn possesses full legislative authority, in the exercise of its discretionary powers, to maintain separate schools for the education of white and colored children in that city, and the consequent power to render effectual, by the exclusion of one class from the schools designed for the other, of the, discretion in regard to that subject which is conferred upon them by the statute. All of the powers necessary to accomplish the object which the legislature had in view in authorizing separate places of education for individuals of different color must be intended to have been granted when the authority to establish such schools was conferred.

The mere right of establishing such separate schools, stripped of the power of determining the persons who might or might not attend them, would be a barren power, productive of no beneficial result, and destructive of the effect of the legislation referred to.

Neither is there any force in the claim made by the relator, that the act excluding her from common school No. 5 was