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 IIaines 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, among 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 trusteesi.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 says that the enrolment in the colored school is this year 238 more than the last, the Ware High School building accommodating 188 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, attainments 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, which 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 have 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 however 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 grant an injunction against the tax collector. But the case was carried to the Supreme Court of Georgia by the Board of Education, where the judgment of the Superior Court of Richmond County was reversed upon the ground that it erred in granting an injunction against the Board of Education. And in accordance with that decision the Superior Court upon the return of the cause from the Supreme Court of the State refused the relief asked by the plaintiffs and dismissed their petition. The plaintiffs in error complain of the latter order as being in derogation of their rights under the Constitution of the United States. Mr. George F. Edmunds for plaintiffs in error. I. As construed by the Supreme Court of Georgia, the constitution and laws of that State justified the Board of Education in maintaining, at the expense of the plaintiffs, public high schools for white children, and in abolishing and refusing to keep up any similar or equivalent school for the education of colored children. The record shows that the colored high school was necessary for the education of the same class of colored children as that of the white children, for which two public high schools were provided. It shows that there was a sufficient number of colored children receiving the benefits of the colored high school when it was abolished, and that their parents protested against its abolition. It shows that the defendants themselves considered the colored high school necessary by declaring, in connection with their abolition of it, that they would reinstate it "whenever the Board, in their judgment, could afford it.” II. It may be assumed that the decision of the Georgia Supreme Court, that the constitution and laws of that State warranted the action complained of (whether reviewable here or not) was correct, although it would seem reasonably clear that the opinion of the inferior court was the sound one, unless the constitution and laws of Georgia were designed by their framers to be illusory. III. The question, then, is whether the Board of Education, under its authority to "establish schools of higher grade at such points in the county as the interests and convenience of the people may require," authorized it to establish and maintain the advanced schools for the sole interest of the white children, and to refuse to maintain a similar school for the benefit of the colored children, while (though this makes no difference in principle) the parents of such colored children were being taxed and their money expended to maintain such higher grade white schools? Although the first section of the eighth article of the constitution of Georgia only made it compulsory that common schools should be established for the elementary branches of an English education, and required the races to be taught separately, the fourth section authorized counties and cities to tax for public schools, and to maintain them out of such taxation. It is under this authority that the public schools in the county of Richmond are carried on. This authorizes the counties and cities to go beyond elementary English education, and to provide, as most civilized States do, for that larger education which teaches not only reading, writing and arithmetic, but those things which lead to the enlargement of mental perceptions, respect for social order, and, indeed, everything that may tend to make the best state of society. It is under this authority that the board of education has undertaken to discriminate distinctly and by name between the two races, and to impose upon one burdens of taxation from which they and their children receive no benefit, for the purpose of giving educational benefits necessary to public interests, to the white children alone. The sole pretence for this discrimination is, as expressly stated by themselves, that they cannot afford it. That is, that all of the public funds applicable to education of the higher grade in the public schools shall be devoted to the benefit of the white children, and none of it applied for the similar education of colored children. The excuse stated being that the Board does not wish to increase taxation which they have the power to impose (then only one fourth of one cent per $100), and that it can make good use of the money that would otherwise be expended in support of a colored high |