discriminated against colored children. It was also held that the fourteenth amendment of the Federal Constitution only required that such children should have the same privilege of obtaining an education with equal facilities as are enjoyed by others without regard to race or color, and that the requirement that they should be educated in separate schools did not impair or interfere with their rights under the Constitution or with any other legal rights of colored pupils.

The Consolidated School Law (Laws of 1894, ch. 556, tit. 15, § 28) contains the same provisions relating to this subject as were contained in the statute of 1864. Thus the same statutory authority for the maintenance of such separate schools now exists as existed when the King case was decided. Therefore, as this question has already been decided, it is not an open one in this court.

But it is insisted by the appellant that as the Penal Code (Sec. 383) makes it a misdemeanor for teachers or officers of common schools and public institutions of learning to exclude any citizen from the equal enjoyment of any accommodation or privilege, it in effect confers upon colored children the right to attend any school they or their parents may choose, and that the school board had no authority to establish separate schools and deny them the right to attend elsewhere. The first answer to this insistence is that the Penal Code was in existence at the time of the decision of the King case, and must be regarded as having been considered in that case. Moreover, independently of that decision, we do not see how that statute changes the effect of the conclusion reached in the case referred to, provided the facilities and accommodations which were furnished in the separate schools were equal to those furnished in the other schools of the borough. It is equal school facilities and accommodations that are required to be furnished, and not equal social opportunities.

The case of People v. King (110 N. Y. 418) is relied upon as modifying or overruling People ex rel. King v. Gallagher. We do not think such is its effect. In the former case a colored person was excluded from a place of public amusement

controlled by the defendant, and it was there held that the latter was guilty of a misdemeanor. In that case there was a total denial of the complainant's right to attend or to participate in the enjoyment of the entertainment. There no other accommodation or facility was furnished by the defendant. Not so here. In this case the colored children were given the same facilities and accommodations as others. We are of the opinion that the case of People v. King neither modifies nor affects the principle of the decision in People ex rel. King v. Gallagher, so far as it applies to the question under consideration.

Again it is said that the present Constitution requires the legislature to provide for the maintenance and support of a system of free common schools wherein all the children of this state may be educated, and, therefore, the school board was required to admit to any school under its control all the children who desired to attend that particular school. Such a construction of the Constitution would not only render the school system utterly impracticable, but no such purpose was ever intended. There is nothing in that provision of the Constitution which justifies any such claim. The most that the Constitution requires the legislature to do is to furnish a system of common schools where each and every child may be educated, not that all must be educated in any one school, but that it shall provide or furnish a school or schools where each and all may have the advantages guaranteed by that instrument. If the legislature determined that it was wise for one class of pupils to be educated by themselves, there is nothing in the Constitution to deprive it of the right to so provide. It was the facilities for and the advantages of an education that it was required to furnish to all the children, and not that it should provide for them any particular class of associates while such education was being obtained. In this case, there is no claim that the relator's children were excluded from the common schools of the borough, but the claim is that they were excluded from one or more particular schools which they desired to attend and that they possessed the legal right to attend those schools, although they were given equal accom

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modations and advantages in another and separate school. We find nothing in the Constitution which deprived the school board of the proper management of the schools in its charge, or from determining where different classes of pupils should be educated, always providing, however, that the accommodations and facilities were equal for all. Nor is there anything in this provision of the Constitution which prevented the legislature from exercising its discretion as to the best method of educating the different classes of children in the state, whether it relates to separate classes as determined by nationality, color or ability, so long as it provides for all alike in the character and extent of the education which it furnished and the facilities for its acquirement.

The order should be affirmed, with costs.

PARKER, Ch. J., GRAY, O'BRIEN, BARTLETT and HAIGHT, JJ., concur; VANN, J., not voting.

Order affirmed.

[Ed. Note.-For other cases, see Commerce, Cent. Dig. 88 91, 95; Dec. Dig. 60(1).] 6. COMMERCE 13 REGULATION OF INTRA-license fees which he has received from cerSTATE COMMERCE-DISCRIMINATION.

tain commission merchants, paid by them under protest and under coercion of the act.

The secretary answers that he is ready and willing to execute this law and to pay over the fees when assured that he will incur no personal liability in so doing, and he asks that the parties interested in the fees paid under protest be brought into court that the whole controversy be fully adjudicated.

W. S. Payne, a commission merchant of Wichita who has paid his license fee under protest, was impleaded and answered setting

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

up many constitutional objections to the act. I private business. Our statutes relating to Some 30 grain dealers of Wichita who re registration of deeds and mortgages, the ceive consignments of grain from country elevators and sell the same on commission intervene and likewise challenge the constitutionality of the act.

statute of frauds, the mechanic's lien law, and the like are illustrations of the exercise of the state's police power over private business. It is also true that business which has heretofore been considered to be private may by changes and progress in the methods of its conduct be transformed into a public or quasi public business, and this may make it desirable and even imperative that the state concern itself in its regulation and control. Of course such regulations must be reasonable, but if they are reasonable they must be obeyed.

The act under consideration provides that all persons who sell farm products on commission, except sales to the ultimate consumer, must have a license issued by the sccretary of the state board of agriculture. The license costs $10 and is effective for one year subject to revocation by the secretary after investigation for unfair or improper business dealings. A judicial review of the acts of the secretary is provided. The li- The business of commission merchants dealcensce must give a bond to insure his fairing in farm produce has grown to be one dealing with his consignors. The secretary of great volume and much importance. In may maintain an action on this bond in a its development its tendency seems to be to proper case. Every commission merchant centralize in the larger cities far removed must keep a complete record of all consignments received and sold by him, with the name of the consignor, date of receipt, kind and quality of the consignment, the price received, name and address of person to whom the goods are sold, and the items of expense, and this record must be forwarded to the consignor within 48 hours after the transaction, unless otherwise agreed. Such a record shall also be kept by the commission merchant for one year, and shall be open to the inspection of the consignor and the secretary of the state board of agriculture or their agents.

Certain relevant offenses are defined by the act, all designed to standarize the business of commission merchants in consonance with honesty and fair dealing.

from the points of origin, and where by no practical possibility can the originators of the traffic, the consignors, keep personal check on the doings of the commission merchants who are merely the agents of the consignors. Such a situation would seem to warrant a reasonable extension of the state's governmental power over the business.

The act does classify commission merchants, but the classification is reasonable. It relates to all who sell farm produce on commission for resale, and this includes "agricultural, horticultural, vegetable, and fruit products of the soil, and meats, poultry, eggs, dairy products, nuts, and honey," but not timber, floricultural products, tea, or coffee. It practically reaches all the important and useful products of farm and truck garden. It specifically exempts matters of little consequence to the Kansas producer. If, as argued, it also exempts live stock, that too is a reasonable exemption, since live stock is almost invariably shipped in carloads and is so valuable as to justify the producer or shipper in the expense of accompanying his shipment to market and personally super

The chief objections to the act may be thus summarized: (a) The act is meddlesome, discriminatory, and class legislation, and so burdensome that it will confiscate and destroy an honorable, useful, and legitimate private business; (b) it confers judicial power on an administrative functionary; (c) it confers corporate power on the state board of agriculture; (d) it interferes with intervising the fidelity of the commission merstate commerce or unjustly burdens domes tic commerce; (e) the title is defective and the act contains two subjects; (f) the act is special; (g) the judicial review is anomalous; and (h) the penalties are excessive.

chant who makes the sale for him or in making the sale himself. As modern business is now conducted, it is practically impossible for the ordinary farmer or fruit producer or truck gardener to market his own products without the agency of the commission merchant.

[1] Examining these points in order, the act is to be justified, if at all, as exercise of the state's police power. It is sometimes con- [2] Nor do the exactions of the statute tended that the state cannot regulate private seem unduly burdensome. It exacts a license business, and that unless the business is one of $10 per annum. That fee is not onerous. of public concern it is exempt from legisla- It requires a bond to insure the commission tive interference. Probably this notion is merchant's fidelity and the payment of his due to the fact that the modern American obligations. This is in accord with the genstate has hitherto left private business large- eral tendency of modern business, relieving it ly to its own devices, and because the state from the uncertainty of fraud or insolvency. in recent years has largely concerned itself It requires the merchant to account and rewith the regulation of business as to which port promptly and completely to the consignthe public's interest was undeniable. Hence or. Perhaps this has always been the law, the elaborate statutes regulating public serv- for what is the relation of consignor and ice corporations. But there can be no doubt commission merchant but that of principal that the state's police power may extend to and agent, and what is this statutory re