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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 disinissed 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 chiktren, 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


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 deroted 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

school, for the elementary education of some colored children for which the common school houses at that time furnished no accommodation. It is not anywhere hinted by the defence that there were not adequate accommodations for all the white children, both in the common and bigh schools; from which it conclusively follows that the public funds have been devoted to the complete provision for all the white children, when they had not for the colored children. The Board of Education was, under the law as construed, the master of all this. Every provision, therefore, having been made for the full education of the white children, and inadequate provision having been made for the elementary education of the colored children, the Board abolishes the colored high school because it cannot afford to maintain it. This, it is earnestly submitted, is not the reasonable exercise of such discretion as the Board may have lawfully had, or the exercise of any discretion at all. It is the arbitrary denial of the equal protection of the laws to these persons of the colored race. It is believed that all the numerous decisions of this court upon this and analo gous subjects are agreeable to the foregoing statement. It is unnecessary to refer to more than a very few of them.

In Chicago, Burlington &c. Railroad v. Chicago, 166 U. S. 226, it was held that the prohibitions of the Fourteenth Amendment referred to all the instrumentalities of the State, legislative, executive and judicial, and that if any public officer under a state Government deprives another of any right protected by that amendment he violates the Constitution. In Gulf, Colorado &c. Railroad v. Ellis, 165 U. S. 150, 154, it was declared that constitutional provisions of the character herein questioned should be liberally construed, and that the courts should be watchful to guard against any stealthy encroachments thereon, and that otherwise the protecting clauses of the Fourteenth Amendment would be a mere rope of sand, in no manner restraining state action. It declared that classifications and distinctions could not be made arbitrarily. In this case the discrimination was arbitrary, no matter how good the motive of the Board may possibly have been. If such action can be upheld, the Board will forever be the sole judge of when it can "afforıl” to give the colored race the same advantage of public education that they tax them to give to the whites. If there is really any life or spirit in the Fourteenth Amendment, such conduct cannot be upheld. In Yick Wo v. llopkins, 118 U. S. 356, this court said that, in spite of what the state court might have thought about it, it would put upon the ordinances of San Francisco an independent construction, and determine whether the proceedings under them were in conflict with the Constitution of the United States or not. In that case the ordinance vested in a board of supervisors the discretion of granting or withholding their assent to the use of wooden buildings as laundries, and so forth. The state court held that that was a discretion not judicially reviewable. This court denied the proposition, and held that while the ordinance gave absolute power to the board, the power was not confided to it as a discretion of regulation, but was to be exercised at their mere will, and that, so-construed, it could not be maintained when exercised so as to produce inequality. This court held that the Fourteenth Amendment required “not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights;” and that “no greater burdens should be laid upon one than are laid upon others in the same calling and condition.” This court held that the principles upon which our Constitution rests do not

mean to leave room for the play and action of purely personal and arbitrary power.” And it held that where the law gives a discretion, that discretion cannot be used, under color of regulating, to subvert or injuriously restrain a right, and that such questions are always open to judicial inquiry. To use the language of this court in that case, the Board has, in the exercise of its authority, applied and administered the law with "an unequal hand, so as practically to make unjust and unethical discriminations between persons in similar circumstances, material to their rights;" and that in such case “the denial of equal justice is still within the prohibitions of the Constitution." The case of Plessy v. Ferguson, 163 U. S. 537, chiefly relied upon by the other side, is entirely consistent with and supports our contention. The case itself determined that it state law requiring separate railway carriages for the two races was valid, is prorision were made for equal accommoilations for both races, and the case stood upon the solid and indisputable ground that neither race was discriminated against in any particular, and it quoted with approval the opinion of the Court of Appeals of New York, that “when the Government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organizedl," and so forth. In Strauder v. West Virginia, 100 U'. S. 303, this court held that the Fourteenth Amendment " was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the General Government in that enjoyment whenerer it shall be denied by the States." The court further said that the words of the imendment, while prohibitory, “con. tained by necessary implication a positive immunity of right, most valuable to the colored race - the right to exemption from unfriendly legislation against them distinctively as colored — the exemption from legal discriminations implying inferiority in civil society, lessening the security of their righits which others enjoy," and so forth.

IV. It will thus be seen that the fact that the school Board had authority to establish and maintain public high schools at convenient places, and so forthi, gives them no authority to establish and maintain public high schools for one race and to refuse to maintain them for the other, when the conditions ind necessities for that advanced education existed in one race as well as the other in the place where their authority was to be exerciseil. These necessities and conditions are by the evidence of the board itself proved to exist.

The necessity for the public high schools for the colored chiluren is, I repeat, clistinctly confessel, and the only pretence of excuse for abolishing it, its stitted by the Lurl itself, wirs

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