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The case then reduces itself to the question whether a state can be said to afford to a child of Chinese ancestry born in this country, and a citizen of the United States, equal protection of the laws by giving her the opportunity for a common school education in a school which receives only colored children of the brown, yellow or black


The right and power of the state to regulate the method of providing for the education of its youth at public expense is clear. In Cumming v. Richmond County Board of Education, 175 U.. S. 528, 545, persons of color sued the Board of Education to enjoin it from maintaining a high school for white children without providing a similar school for colored children which had existed and had been discontinued. Mr. Justice Harlan, in delivering the opinion of the Court, said:

"Under the circumstances disclosed, we cannot say that this action of the state court was, within the meaning of the Fourteenth Amendment, a denial by the State to the plaintiffs and to those associated with them of the equal protection of the laws, or of any privileges belonging to them as citizens of the United States. We may add that while all admit that the benefits and burdens of public taxation must be shared by citizens without discrimina tion against any class on account of their race, the education of the people in schools maintained by state taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools can not be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land."

The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow or black. Were this a new question,

it would call for very full argument and consideration, but we think that it is the same question which has been many times decided to be within the constitutional power of the state legislature to settle without intervention of the federal courts under the Federal Constitution. Roberts v. City of Boston, 5 Cush. (Mass.) 198, 206, 208, 209; State ex rel. Garnes v. McCann, 21 Oh. St. 198, 210; People ex rel. King v. Gallagher, 93 N. Y. 438; People ex rel. Cisco v. School Board, 161 N. Y. 598; Ward v. Flood, 48 Cal. 36; Wysinger v. Crookshank, 82 Cal. 588, 590; Reynolds v. Board of Education, 66 Kans. 672; McMillan v. School Committee, 107 N. C. 609; Cory v. Carter, 48 Ind. 327; Lehew v. Brummell, 103 Mo. 546; Dameron v. Bayless, 14 Ariz. 180; State ex rel. Stoutmeyer v. Duffy, 7 Nev. 342, 348, 355; Bertonneau v. Board, 3 Woods 177, s. c. 3 Fed. Cases, 294, Case No. 1,361; United States v. Buntin, 10 Fed. 730, 735; Wong Him v. Callahan, 119 Fed. 381.

In Plessy v. Ferguson, 163 U. S. 537, 544, 545, in upholding the validity under the Fourteenth Amendment of a statute of Louisiana requiring the separation of the white and colored races in railway coaches, a more difficult question than this, this Court, speaking of permitted race separation, said:

"The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced."

The case of Roberts v. City of Boston, supra, in which Chief Justice Shaw of the Supreme Judicial Court of Massachusetts, announced the opinion of that court upholding the separation of colored and white schools under a state constitutional injunction of equal protection, the same as the Fourteenth Amendment, was then referred to, and this Court continued:

"Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia, Rev. Stat. D. C. §§ 281, 282, 283, 310, 319, as well as by the legislatures of many of the States, and have been generally, if not uniformly, sustained by the Courts," citing many of the cases above named.

Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils, but we can not think that the question is any different or that any different result can be reached, assuming the cases above cited to be rightly decided, where the issue is as between white pupils and the pupils of the yellow races. The decision is within the discretion of the state in regulating its public schools and does not conflict with the Fourteenth Amendment. The judgment of the Supreme Court of Mississippi is



(295 U.S. 45 (1934))


No. 563. Argued March 11, 1935.-Decided April 1, 1935.

1. In the light of principles announced by the highest court of Texas, relative to the rights and privileges of political parties under the laws of that State, the denial of a ballot to a negro for voting in a primary election, pursuant to a resolution adopted by the state convention restricting membership in the party to white persons, can not be deemed state action inhibited by the Fourteenth or Fifteenth Amendment. P. 49.

2. Analysis of the decisions of the Supreme Court of Texas in the cases of Bell v. Hill and Love v. Wilcox lends no support to the claim that §§ 2 and 27 of the Bill of Rights of Texas violate the Federal Constitution. P. 53.

3. The provisions of Art. 3167 of the Revised Civil Statutes of

Texas, 1925, prescribing the times when state conventions of political parties are to be held and regulating the method of choosing delegates, do not warrant the conclusion that the state convention is a mere creature of the State. P. 53.

4. That in Texas nomination by the Democratic party is equivalent to election, and exclusion from the primary virtually disfranchises

the voter, does not, without more, make out a forbidden discrimination in this case. P. 54.

5. That the Democratic national organization has not declared a policy to exclude negroes from membership, gives no support to the claim of one who was thus excluded pursuant to a resolution of a state convention of the party in Texas, that he was discriminated against by the State in violation of the Federal Constitution. P. 55.


CERTIORARI, 294 U. S. 699, to review a judgment dismissing an action for ten dollars damages, brought by Grovey, in a justice's court, against Townsend, a county clerk, based on the latter's refusal to issue to the former an absentee ballot for voting in a primary election. Under the state law, the judgment, because of the small amount involved, was not reviewable in any higher court of the State.

Mr. J. Alston Atkins, with whom Mr. Carter W. Wesley was on the brief, for petitioner.

No appearance for respondent.

MR. JUSTICE ROBERTS delivered the opinion of the Court.

The petitioner, by complaint filed in the Justice Court of Harris County, Texas, alleged that although he is a citizen of the United States and of the State and County, and a member of and believer in the tenets of the Democratic party, the respondent, the county clerk, a state officer, having as such only public functions to perform, refused him a ballot for a Democratic party primary election, because he is of the negro race. He demanded ten dollars damages. The pleading quotes articles of the Revised Civil Statutes of Texas which require the nomination of candidates at primary elections by any organized political party whose nominees received one hundred thousand votes or more at the preceding general election, and recites that agreeably to these enactments a Democratic primary election was held on July 28, 1934, at which petitioner had the right to vote. Referring to statutes

which regulate absentee voting at primary elections, the complaint states the petitioner expected to be absent from the county on the date of the primary election, and demanded of the respondent an absentee ballot, which was refused him in virtue of a resolution of the state Democratic convention of Texas, adopted May 24, 1932, which is:

"Be it resolved, that all white citizens of the State of Texas who are qualified to vote under the Constitution and laws of the state shall be eligible to membership in the Democratic party and as such entitled to participate in its deliberations."

The complaint charges that the respondent acted without legal excuse and his wrongful and unlawful acts constituted a violation of the Fourteenth and Fifteenth Amendments of the Federal Constitution.

A demurrer, assigning as reasons that the complaint was insufficient in law and stated no cause of action, was sustained; and a motion for a new trial, reasserting violation of the federal rights mentioned in the complaint, was overruled. We granted certiorari,1 because of the importance of the federal question presented, which has not been determined by this court." Our jurisdiction is clear, as the Justice Court is the highest state court in which a decision may be had, and the validity of the constitution and statutes of the state was drawn in question on the ground of their being repugnant to the Constitution of the United States.*

1294 U. S. 699.

'Rule 38, 5 (a).

'Downham v. Alexandria, 9 Wall. 659; Tinsley v. Anderson, 171 U. S. 101. Constitution of Texas, Article V, §§ 3, 6, 8, 16 and 19. Revised Civil Statutes of Texas of 1925, Articles 1906-1911, 23852387, 2454, 2460. Gulf, C. &'S. F. Ry. Co. v. Rawlins, SO Tex. 579; Hudson v. Smith, 63 Tex. Civ. App. 412; 133 S. W. 486; Arrington v. People's Supply Co., 52 S. W. (2d) 678.

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