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be thought to deny one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands.' Jones v. City of Opelika, 316 U.S. 584, 602, [62 S.Ct. 1231, 1242, 86 L.Ed. 1691], dissenting opinion, adopted per curiam on rehearing, 319 U.S. 103, 104, [63 S.Ct. 890, 87 L.Ed. 1290]." Staub v. City of Baxley, supra, 355 U.S. at page 319, 78 S.Ct. at page 280. Clearly, that decision is not applicable here, for in that case the appellant had a legal right to engage in the occupation regardless of the ordinance, while here a tenant could not be admitted to a housing project without having made an application. No one could reasonably contend that by applying for admission to a public housing project the appellant would be yielding to any unconstitutional demand.

[4] We conclude that the appellantplaintiff has no standing to maintain this

action when she has not been denied admission to a public housing project on account of her race or color. That is the very gist of her claim. Absent such standing, there is no justiciable claim or controversy.10

[5] Mr. Stillwell's testimony has been noted (footnote 7, supra) to the effect that in his opinion actual segregation is essential to the success of a program of public housing in Savannah. If the people involved think that such is the case and if Negroes and whites desire to maintain voluntary segregation for their common good, there is certainly no law to prevent such cooperation. Neither the Fifth nor the Fourteenth Amendment operates positively to command integration of the races but only negatively to forbid governmentally enforced segregation.11

The judgment of dismissal is Affirmed.

10. Associated Industries of New York v. Ickes, 2 Cir., 1943, 134 F.2d 694, 700.

(5 Massachusetts 198 (1866))

The general school committee of the city of Boston have power, under the constitution and laws of this commonwealth, to make provision for the instruction of colored children, in separate schools established exclusively for them, and to prohibit their attendance upon the other schools.

THIS was an action on the case, brought by Sarah C. Roberts, an infant, who sued by Benjamin F. Roberts, her father and next friend, against the city of Boston, under the statute of 1845, c. 214, which provides that any child, unlawfully excluded from public school instruction in this common. wealth, shall recover damages therefor against the city or town by which such public instruction is supported.

The case was submitted to the court of common pleas, from whence it came to this court by appeal, upon the following statement of facts:

"Under the system of public schools established in the city of Boston, primary schools are supported by the city, for the instruction of all children residing therein between the ages of four and seven years. For this purpose, the city is divided for convenience, but not by geographical lines, into twentyone districts, in each of which are several primary schools making the whole number of primary schools in the city of Boston one hundred and sixty-one. These schools are under the inmediate management and superintendence of the pri mary school committee, so far as that committee has authority, by virtue of the powers conferred by votes of the general school committee.

"At a meeting of the general school committee, held on the 12th of January, 1848, the following vote was passed:~


less the establishme

“The ineinber of t

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"Resolved that the primary school committee be, and they bereby are, author at the request of ca laed to organize their body and regulate their procecdings as they may deem mo attend the public se

sc convenient; and to fill all vacancies occurring in the same, and to remove any of their members

at their discretion during the ensuing year; and that this boardini existing against the ubeerfully receive from said committee such communications as they may have

" The plaintiff is Occasion to make.”

resident of Boston, a “ The city of Boston is not divided into territorial school of March, 1847, in districts; and the general school committee, by the city char district. In the mo ter, have the care and superintendence of the public schools age and qualificatic In the various grammar and primary schools, white children tion.) applied to a do not always or necessarily go to the schools nearest their conmittee

, having residences; and in the case of the Latin and English highest to her place of schools (one of each of which is established in the city) most school

, the number of the children are obliged to go beyond

the school-houses sion, and no special nearest their residences " The regulations of the primary school committee contain exclusively

, is to be the following provisions :" ADN18810Ns. No pupil shall be admitted into a primary school

, without o

applied, refused her ticket of admission from a member of the district committee.

“ ADM18810ns of APPLICANTS. Every member of the committee shall admit to his school, all applicants, of suitable age and qualifications, residing nearest to the school under his charge, (excepting thosc for whom special provision has been made, ) provided the number in his school will warrant the admission.

" SCHOLARS TO GO TO SCHOOLS NEAREST TAEIR RESIDENCES. Applicar.ts for admission to the schools, (with the exception and provision referred to in the pro ceding rule,) are especially entitled to enter the schools nearest to their places of residence."

“ " At the time of the plaintiff's application, as hereinafter mentioned, for admission to the primary school, the city of Boston had established, for the exclusive use of colored child. ren, two primary schools, one in Belknap street, in the eighth special provision af school district, and one in Sun Court street, in the second school district.

“ The colored population of Boston constitute less than one sixty-second part of the entire population of the city

. For half a century, separate schools have been kept in Boston for colored children, and the primary school for colored children in Belknap street was established in 1820, and has been kept there ever since. The teachers of this school have the same city. Schools for colored children were originally established cornpensation and qualifications as in other like schools in the

colored person, and The plaintiff thereu tee of the district, fu was in like manner color and the provis the general primary of the schools neares the subject to the ce and the committee plaintiff's applicatie

attended ant school February, N 4, the nearest her residence other leave granted school by the teache

The school esta hundred feet distant suring through the residence to the Bell the end of 110 stree


at the request of colored citizens, whose children could not attend the public schools, on account of the prejudice then existing against them.

"The plaintiff is a colored child, of five years of age, a resident of Boston, and living with her father, since the month of March, 1847, in Andover street, in the sixth primary school district. In the month of April, 1847, she being of suitable age and qualifications, (unless her color was a disqualification,) applied to a member of the district primary school committee, having under his charge the primary school nearest to her place of residence, for a ticket of admission to that school, the number of scholars therein warranting her admission, and no special provision having been made for her, unless the establishment of the two schools for colored children exclusively, is to be so considered.

"The member of the school committee, to whom the plaintiff applied, refused her application, on the ground of her being a colored person, and of the special provision made as aforesaid. The plaintiff thereupon applied to the primary school commit tee of the district, for admission to one of their schools, and was in like manner refused admission, on the ground of her color and the provision aforesaid. She thereupon petitioned the general primary school committee, for leave to enter one of the schools nearest her residence. That committee referred the subject to the committee of the district, with full powers, and the committee of the district thereupon again refused the plaintiff's application, on the sole ground of color and the special provision aforesaid, and the plaintiff has not since attended any school in Boston. Afterwards, on the 15th of February, 1848, the plaintiff went into the primary school nearest her residence, but without any ticket of admission or other leave granted, and was on that day ejected from the school by the teacher.


The school established in Belknap street is twenty-one hundred feet distant from the residence of the plaintiff, measuring through the streets; and in passing from the plaintiff's residence to the Belknap street school, the direct route passes the ends of two streets in which there are five primary schools

The distance to the school in Sun Court street is much greater. The distance from the plaintiff's residence to the nearest primary school is nine hundred feet. The plaintiff might have attended the school in Belknap street, at any time, and her father was so informed, but he refused to have her attend there.

"In 1846, George Putnam and other colored citizens of Boston petitioned the primary school committee, that exclusive schools for colored children might be abolished, and the committee, on the 22d of June, 1846, adopted the report of a sub-committee, and a resolution appended thereto, which was in the following words :

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•Resolved, that in the opinion of this board, the continuance of the separate schools for colored children, and the regular attendance of all such children upon the schools, is not only legal and just, but is best adapted to promote the education of that class of our population."

The court were to draw such inferences from the foregoing facts as a jury would be authorized to draw; and the parties agreed that if the plaintiff was entitled to recover, the case should be sent to a jury to assess damages; otherwise the plaintiff was to become nonsuit.

C. Sumner and R. Morris, Jr., for the plaintiff.
Mr. Sumner argued as follows:-


1. According to the spirit of American institutions, and especially of the constitution of Massachusetts, (Part First, Articles I. and VI.,) all men, without distinction of color or race, are equal before the law.

2. The legislation of Massachusetts has made no discrimination of color or race in the establishment of the public. schools. The laws establishing public schools speak of "schools for the instruction of children," generally, and " for the benefit of all the inhabitants of the town," not specifying any particular class, color, or race. Rev. Sts. c. 23; Colony law of 1647, (Ane. Ch. c. 186.) The provisions of Rev. Sts. c. 23,

68, and St. 1938, c. 154, appropriating small sums out of the school fund, for the support of common schools among the Indians, do not interfere with this systein. They partake of the anomalous character of all our legislation with regard to

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