People of the United States, for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.

For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

MR. JUSTICE BREWER did not hear the argument or participate in the decision of this case.

CUMMING v. RICHMOND COUNTY BOARD OF

EDUCATION.

(175 U.S. 528 (1899))

ERROR TO THE SUPERIOR COURT OF RICHMOND COUNTY, GEORGIA.

No. 164. Argued October 80, 1899.- Decided December 18, 1899.

The plaintiffs in error complained that the Board of Education used the funds in its hands to assist in maintaining a high school for white children, without providing a similar school for colored children. The substantial relief asked for was an injunction. The state court did not deem the action of the Board of Education in suspending temporarily and for economic reasons the high school for colored children a sufficient reason why the defendant should be restrained by injunction from maintaining an existing high school for white children. It rejected the suggestion that the Board proceeded in bad faith or had abused the discretion with which it was invested by the statute under which it proceeded, or had acted in hostility to the colored race. Held that under the circumstances disclosed, this court could not 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.

While all admit that the benefits and burdens of public taxation must be shared by citizens without discrimination 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 cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.

THE plaintiffs in error, Cumming, Harper and Ladeveze, citizens of Georgia and persons of color suing on behalf of themselves and all others in like case joining with them, brought this action against the Board of Education of Richmond County and Charles S. Bohler, tax collector.

In the petition filed by them it was alleged

That the plaintiffs were residents, property owners and taxpayers of Richmond County, the defendant Board being a corporation created under an act of the General Assembly of Georgia of August 23, 1872, regulating public instruction in that county, empowering the Board to annually levy such tax as it deemed necessary for public school purposes;

That on the 10th of July, 1897, the Board levied for that year for the support of primary, intermediate, grammar and high schools in the county, a tax of $45,000, which was then due and being collected;

That the petitioners interposed no objections to so much of the tax as was for primary, intermediate and grammar schools, but the tax for the support of the system of high schools was illegal and void for the reason that that system was for the use and benefit of the white population exclusively;

That the Board was not authorized by law to levy any tax for the support of a system of high schools in which the colored school population of the county were not given the same educational facilities as were furnished the white school population;

That at least $4500 of the tax of $45,000 was being col

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lected and when collected would be used for the support of such system of high schools;

That the Board had on hand the sum of $20,000 or other large sum, the proceeds of prior tax levies, in trust to disburse solely for legal educational purposes in the county, and would receive from the tax levy of 1897 and from other sources large sums in like trust, and that it was the owner and had the custody and control of school fixtures, furniture, educational equipments and appliances generally, holding the same in like trust; and,

That although the Board was not authorized by law to use any part of such funds or property for the support and maintenance of a system of high schools in which the colored school population were not given the same educational facilities as were furnished for the white school population, it was using such funds and property in the support and maintenance of its existing high school system, the educational advantages of which were restricted wholly to the benefit of the white school population of Richmond County to the entire exclusion of the colored school population, and that by such use of those funds and property a deficiency for educational purposes would inevitably result, to make which good additional taxation would be required.

The petitioners also alleged that they were persons of color and parents of children of school age lawfully entitled to the full benefit of any system of high schools organized or maintained by the Board; that up to the time of the said tax levy and for many years continuously prior thereto, the Board maintained a system of high schools in Richmond County in which the colored school population had the same educational advantages as the white school population, but on July 10, 1897, it withdrew from and denied to the colored school population any participation in the educational facilities of a high school system in the county and had voted to continue to deny to that population any admission to or participation in such educational facilities; and that at the time of such withdrawal and denial the petitioners respectively had children attending the colored high school then existing, but who were

now debarred from participation in the benefits of a public high school education though petitioners were being taxed therefor. They averred that the action of the Board of Education was a denial of the equal protection of the laws secured by the Constitution of the United States, and that it was inequitable, illegal and unconstitutional for the Board to levy upon or for the tax collector to collect from them any tax for the educational purposes of the county, from the benefits of which the petitioners in the persons of their children of school age were excluded and debarred.

The petitioners prayed that the tax collector Bohler be enjoined from collecting so much of the tax levy of July 10, 1897, as had been levied for the support of said system of high schools; that the Board be enjoined from using any funds or property then held by it or thereafter to come into its hands for educational purposes in the county for the support, maintenance or operation of that system; and that they have such other and further relief as was equitable and just.

The Board of Education demurred to the petition and also filed an answer. It denied that it had established any system of high schools in the county, and averred that it was neither its duty nor had it authority to establish such a system, although it had authority in its discretion to establish high schools at such points in the county as the interest or convenience of the people required; that in pursuance of such authority it had established the Neely High School in 1876, but in 1878 its name was changed to that of the Tubman High School, when Mrs. Emily II. Tubman presented to the Board a large lot and building for the purpose of affording a higher education to the young women of the county, the Richmond Academy affording this benefit and advantage to the male sex; that the demand was urgent for the continuance of the Tubman school by the Board, and it was so accordingly determined, each pupil paying fifteen dollars for tuition per annum and non-residents of the county forty dollars, which was the charge made by the Richmond Academy for Boys; and that the property, the value of which with the fixtures, furniture and appliances was worth not less than $30,000, was

donated by Mrs. Tubman upon the express condition that in the event the Board failed to use the building for a high school the same was to enure instantly to the benefit of the Richmond Academy and the Augusta Free School;

That in June, 1876, the Board deemed it wise to give its assistance to the Hephzibah High School, conducted and controlled by the Hephzibah Baptist Association in the village of Hephzibah in the southeastern part of the county, charging and receiving for high school scholars the sum of fifteen dollars per annum;

That, in 1880, there being no high school in the county for the colored race, the funds of the Board justifying it, and other schools of lower grade having been established by the local trustees in Augusta sufficient to accommodate the colored children, the Board deemed it wise and proper to establish the Ware High School, charging for each pupil taught therein ten dollars per annum; and

That in June, 1897, a special committee appointed by the Board investigated the status of the high schools in the county and ascertained the condition of each, and the committee recommended that, for "purely economic reasons in the education of the negro race," the Ware High School be discontinued and the City Conference Board requested to open four primary schools in the same building at a cost of about $200 each for the accommodation of those negro children who were annually denied admittance to the schools.

The answer of the Board further stated: "Touching the Ware High School, its friends and the colored patrons thereof were called before the committee, and were heard by the committee with every respect and consideration. They were told the reasons that controlled the committee in its intention to recommend its discontinuance for the present. These were: Because four hundred or more of negro children were being turned away from the primary grades unable to be provided with seats or teachers; because the same means and the same building which were used to teach sixty high school pupils would accommodate two hundred pupils in the rudiments of education; because the Board at this time was not finan