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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 froin 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 froin 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 bad 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 Iligh 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 wbo 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 callėd 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
cially able to erect buildings and employ additional teachers for the large number of colored children who were in need of primary education, and because there were in the city of Augusta at this time three public high schools — the Ilaines Industrial School, the Walker Baptist Institute and the Payne Institute — each of which were public to the colored people and were charging fees no larger than the Board charged for pupilage in the Ware High School.” After stating that the action of the special committee was approved by the Board, the answer continued: “At the same time when the vote was taken on the report of the Ware High School it was unanimously resolved that the Board of Education reinstate the said school whenever in their judgment the Board could afford it. Subsequently to the Board's temporary suspension of the Ware High School a number of colored people petitioned the Board for rescission of this action, ainong whom were the complainants herein. A full Board was called and convened on the — day of August, and the petitioners were heard and their request fully considered. The Board, after a session and deliberation of over two hours, refused to rescind for the reasons heretofore set out, and said that in their view, until the local trustees — i.e. the City Conference Board — should have furnished a sufficiency of primary schools for the colored population it would be unwise and unconscionable to keep up a high school for sixty pupils and turn away three hundred little negroes who are asking to be taught their alphabet and to read and write. No part of the funds of this Board accrued or accruing and no property appropriated to the education of the negro race has been taken from them. This Board has only applied the same means and the same moneys from one grade of their education to another grade; and in this connection defendant sav's
that the enrolment in the colored school is this year 238 more than the last, the Ware High School building accommodating 18S pupils.”
The answer of the Board, referring to the act of 1872, averred that " section 9 of said act commands the local trustees to provide the same facilities to each race as regards school houses and fixtures, attaininents and abilities of teachers and length of term, but that this section refers only to the schools established by the trustees of each school district under section 6 of said act, and does not apply to schools of higher grade; that section 10 of said act, wbich empowers this respondent to establish schools of higher grade than those established by the local trustees, ordains their establishment to such as the interest and convenience of the people may in the judgment of this Board require. It admits that on the 10th day of July last it suspended the Ware High School for the reason that in its judgment the interest and convenience of the people did not require it, and that it caused to be established in its stead three primary schools for colored children, and for reasons heretofore in its answer set forth. Whether or not the petitioners at the time of said suspension had children attending the Ware High School this defendant is not advised, but denies that they are debarred from a high school education in this community, since for the same charges as were made by this Board for pupilage in the Ware High School they can find this education in three other colored high schools open to the public in the city of Augusta. Defendants deny the allegations specially pleading that the acts of 1872 and 1877 deny to the colored race equal protection of the law, or that the course and conduct of this Board thereunder is obnoxious to this constitutional inhibition."
The plaintiffs amended their petition, alleging: “1st. That 'the Payne Institute,' the Walker Baptist Institute,' and 'the Haines Normal and Industrial Institute' mentioned in said answer, are purely private and pay educational institutions under sectarian control, and have been in existence for years past and have no connection and never bare had any connection whatsoever with the public school system conducted by said Board. 2d. That said Board has no legal right to charge for extending a public high school education to the children of school age of actual residents of said county. 3d. That if a deficiency of means exists for extending a public primary school education to the colored school population of the city of Augusta in said county, said deficiency is due to the illegal action of said Board in appropriating to the white school population of said city largely more of the public school fund than it is legally entitled to, to the corresponding detriment of the colored school population of said city, and but for such illegal action there would be no such deficiency as said Board avers."
In answer to this amended petition, the Board admitted that the Payne Institute, the Walker Baptist Institute, and the Haines Normal and Industrial Institute mentioned in its answer were private educational institutions under sectarian control and had no connection with the public school system conducted by the defendant Board. But it averred that the impression sought to be conveyed that there was sectarian, denominational teaching in those schools was untrue; that the schools referred to were open to the public generally, and any child of sufficient scholarship and moral character could enter them, whatever his or her religious belief. The Board also asserted its right to charge for tuition in high schools, and denied that any deficiency of means for extending a public primary school education to the colored school population was due to any action it had taken.
The defendant Bohler, the tax collector, demurred to the petition and also filed an answer.
The cause having been heard upon the demurrers and pleadings, the court sustained the demurrer of defendant Bohler, and refused to grant any injunction against him as tax collector. But the demurrer of the Board of Education was overruled, and an order was entered restraining the Board from using “any funds or property now in or hereafter coming into its hands for educational purposes in said county for the support, maintenance or operation of any white high school in said county until said Board shall provide or establish equal facilities in high school education as are now maintained by them for white children for such colored children of high school grade in said county as may desire a high school education or until the further order of the court." This order was howerer suspended until the Supreme Court of the State should render its decision in the cause.
The plaintiffs did not appeal from the order refusing to