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sary to speculate; but the fact of a distribution of men by race and color is as visible in the providential arrangement of the earth as that of heat and cold. The natural separation of the races is therefore an undeniable fact, and all so cial organizations which lead to their amalgamation are repugnant to the law of nature. From social amalgamation it is but a step to illicit intercourse, and but another to intermarriage. But to assert separateness is not to declare inferiority in either; it is not to declare one a slave and the other a freeman; that would be to draw the illogical sequence of inferiority from difference only. It is simply to say, that, following the order of Divine Providence, human authority ought not to compel these widely separate races to intermix. The right of such to be free from social contact is as clear as to be free from intermarriage. The former may be less repulsive as a condition, but no less entitled to protection as a right. When, therefore; we declare a right to maintain separate relations, as far as reasonably practicable, but in a spirit of kindness and charity, and with due regard to equality of rights, it is not prejudice, nor caste, nor injustice of any kind, but simply to suffer men to follow the law of races established by the Creator himself, and not to compel them to intermix contrary to their instincts."

We fully concur in, and indorse the doctrine above enunciated. 'It is quite clear to us, that neither the fourteenth amendment nor the civil rights bill has impaired or abrogated the laws of this State on the subject of marriage of whites and negroes. The court erred in quashing the indictment.

The judgment is reversed, and the cause is remanded, with directions to the court below to overrule the motion to quash the indictment, and to place the appellee upon his trial for the crime charged in said indictment.

B. W. Hanna, Attorney General, and W. P. Hargrave, for the State.

A. L. Robinson, for appellee.

STATE EX REL., GARNES V. JOHN Tapping. Mandamus 319; Moses, Mandamus W. McCANN ET AL.

141: Lewis v. Henley, 2 Ind. 332.

3. The relator has a right to ask that the (21 Ohio St. 199 (1871))

writ shall issue on his application. He is entitled to it. He resides in the subdistrict

of which respondents are directors. There December Term, 1871.

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other school kept in the subdistrict.

His children are of the proper age ; and tbe Schools-Constitutional law.

sole reason that they are debarred the privi. leges of the school is that they are colored.

Under the tourteenth amendment to the conWhere, under the 31st section of the act of stitution of the United States, this is not 1853, "to provide for the organization,

& valid ground for exclusion. supervision, and maintenance of common Section 1, of the amendment (18 U. 8. schools," as amended in 1864, (61 0. L.

Stat. At L. 706) reado follows: "All 32; repealed Sec. 7437 Rev. Stat. 1880

persons born or naturalized in the United (No. 1272)). the proper boards of educa

States, and subject to the jurisdiction thereot tion constructed a joint district for the

are citizens of the United Stater, and of the education of colored children out of two

state wherein they reside. No state shall contiguous districts for the education of

make ar enforce any law which shall abridge white children, and provided a school for

the privileges or immunities of citizens of colored children in the joint district equal

the United States, por shall any state dein every respect to those for white chil.

prire hay person of life, liberty or property dren in the other districts, and wbich

without due process of law, nor deny to any schools for each class of children were

Dernon within its jurisdiction tbe equal proequally commodlous: Held, that the act

tection of the laws." authorizing such classification, on the basis

There is no longer in this country, or 10 of color, dres not contravene the con

ADY state in this country, as there once was, stitution of the state, nor the 14tb amend. ment of the constitution of the United an intermedlate, class of people standing halt States, and that colored children residing way between citizens and aliens born in tbe in either of the districts for white chil country, and yet not of the country, whose dren, are not, as of right, entitled to position is undefined and whose rights are admission into the schools for wbite cbll. doubtful and uodetermloed. The relator is dren. pp. 208, 211.

a citizen of the United Statet.

As to what are the rights and privileges

of citizens, see1 Bosw. 64; Dred Scott v. Mandamus.

Sandford, (60 U. 8.) 19 How. (393) 404 ;

Amy. v. Smith, (11 Ky.) 1 Litt. (326) 333, The case is stated in the opinion of the 334 ; Powell's Analysis of Am. Law 120. court.

Our school law discriminates ayainst colored children.

The statute (8. & 8. 705 ) providing for the Mitchell & Watson, for the relator: classification of school children according to

color, or at least that part of it which would, 1. The respondents are the proper parties as in this instance, compel colored children against wbom the writ of mapdamus should to 80 outside of the limits of the subdig. 186ue. 8. & C. 1348.

trict in which they reside to attend school, 2. Mandamus is the proper remedy

Nourse ard, in certain contingencles, debar them from v. Merriam. (199) (62 Mass.) 8 Cush. 11; the privileges of common schools altogether,

Cited, as supporting propositions as follows :

There being a lawful classlocation of schools, 80 tbat colored children bave their own schools, and the provision for colored schools being in proper proportion to the number of colored pupils, the court cannot interfere witb the classlocation, in favor of a colored pupil living cannot be enforced without abridging the privileges (200) of citizens within the meanlog, of the amendment to the constitution. again, the enforcement of this law would be * violation of this Amendment. berause it would compel a certain class of citizens to submit to the management and control of their acbool fond to a board not chosen by themselves, while it secures to another class the privilege of having their proportion of the school innd appropriated and managed by the electors elected by the voters of the suhdistrirt. In this particular the statute secures to one class å privilege It denles to another.

la Van Camp v. Board of Education, y Ohio St. 406. our school law was held to be one

of classification and not of exclusion. Plass logislation was then permitted : color could then he made a basis of classification, as well as age or sex. without vlolating the constitution of the United States, but not 80 since the amendment.

The relator claims the right to send his children to the public school which is kept in the district in which be resides. It lo the only school within the district. Our school law would drive his children forth to some otter district where there is malotalned a reparate school for colored children. To refuse this writ would be to enforce a law bich denies to him the privileges that belong to other citizens living in the same alotrict. They possess the advantages and conveniences of having their children instructed in a school located within the limits of their modistrict, and under the control of omcers Elected by themselves. To deny the reiator these advantages and convensences, is to abridge his privileges, since the denlal is placed solely on the ground that be 18 col. orert

The citizen is bound to give obedience, and the government must furnish protection. The relator "cannot be a citizer to obey, and an allen to deinand protection."

C. N. Oids, for defendants:

The school for colored children lo estab Lisbed in strict conformity to the school law of this state (8. & 8. 706, Sea 31), and ta fulls, equal, la every respect to the school (201) for white children, in subdistrict dio. 8, 10 attording all the advantages and print leges of a common school educa dop.

This provision of the school law of the statą, has been construed and fully sustained uy this rourt, in tbe case of Van Camp 1. Board of Edncation, 9 Ohio St. 408. Io hleh the court bolds that this law for colored scbools 18 one of classifcation, and not of esclusion; providing for the education of all youth within the prescribed ages.

Since this decision, the law amended (8. & 8. 703), and made more lib eral than the one in force at the date of that decision. The school for colored children may DOW be, and the one established in this ase. 18, in fact, equal in every particular, ir not superior

to the one established for wbite children. The only difference is the classification on aocount of color.

I insist that such classifcation is not in conflict with either the letter or the spirit of the fourteenth amendment, and that the law clearly coafers upon the school authorttles the right to make this classification at their own discretion. It made in the exercise of a reasonable discretion and in good faith tbelr action is not subject to review bs tbla or any other court.

The members of the township board of education are public oficerg. wbose powers and Cuties are clearly prescribed and defined by law. 8. & C. 1348, Rec. 1; 1350, Sec. 11; 1351, Secs. 13, 14, 15; S. & 8. 705, Sec. 31.

The various powers of the board of educktion are largely discretionary. to be exercised according to their wn best judgment, and with due regard to the peculiar circumstances,

four miles from the scbool in which it is the United States. 1880. Peters V. MeWIIallotted. 1876. State V. Cincinnati (Bd. of Ilams, 36 0. S. 155, 161. Ed.) 7 Re. 129 (1 Bull. 139).

Under the provisions of Sec. 3946 Rev. Stat. The power to establish separate schools for

three or more persons are not authorized to colored children was conferred by Sec. 4008

commence proceedings for the creation of . Rev. Stat., and not by Sec. 4013 Rev. Stati special school district and have the same estab While under the latter section power 18 con

ilsbed. when it is sought by such proceeding ferred on boards of education to make such as

to loclude with the district prayed for, the algoments of the youth of their respective dis

wbole, or a part of the territory of a joint sub

district then existing. This would be in con#lets, to the schools established by them, such power cannot be exercised with reference to

Alet with the provisions of Sec. 3950 Rev. Stat. the race or color of the youth; and Sec.

See Wayne Tp. (Bd. of Ed.) v. Clark, 3 Cire. 1008 Rev. Stat. having been repealed by the cember 20, 1892, Clark v. Board of Education,

Dec. 604 (6 R. 599): armed, no report. Deact of February 22. 1887 (84 0. L. 34). 28 Bull. 356 : see also Board of Education rapante schools for colored cbildren have been abolished, and no regulation can be made under 0. S. 577.

Stuck, 39 0. 8. 259 : Anders v. Spargur, 19 Sec. 4013 Rev. Stat., that does not apply to all children Irrespective of race or color. See In other states: Oxford (Bd. of Ea.) v. State, 45 0. 8. 555 (16 With other authorities as to the true conN. E. Rep. 373) ; see also, Cist v. State, 21° 0. struction of the constitutional guaranty 8. 330.

equal rights. San Mateo Co. v. Rallway Co. 8 All legislative power is vested in tbe gen.

Am. & Eng. Ry. Cas. 56, n. eral assembly, by Sec. 1. Art. 2 of the consti

With other authorities on school privilege tution of Oblo, subject to the limitations and Louisville Safety Vault & Tr. Co. v. Rallway restrictions contained in other provisions of Co. 14 L. R. A. $810. that Instrument, and in the constitution of Separate public schools being provided for

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wante, Interests, and even prejudices, If you The relator should look to the township please. , f each particular locality or neigh-Loard for redress, or should ask tals court to Lorbood.

send its process and mandates to them, and If, in the!r discretion, they loay classify not to these defendants. elther schools or scholars, in any manner whatever for the promotion of the best interests of schools and of education. basing (203) DAY, J. their classification upon age, or sex, or scholar. ly attainment, as they undoubtedly may and

This is an application for a writ of man. do every day; why may they not also [202] damus against the local school directors classity by color, if, in their judgment, it be- and teacher, in a subdistrict of a township comes necessary or expedient for them to do

to admit the children of the plaintiff to In this case, the olassification based upon the privileges of a specific district school. color, has got."abridged any of the privileges By agreement the case is submitted upon or immunities' of the relator, as a citizen of the United States, nor denied to him "the the facts stated in the information and equal protection of the laws" of this state, as answer, which are substantially as fol& citizen of the state. He bas every right lows: and privilege under the school laws of this state that I have. The only difference be.

The plaintin is a colored citizen having tween us is, that I am required to send my three children, and resides in school subchildren to one schoolbouse, and he to send district number nine in the township of bis to another. Is that discrimination in his favor or mine? Who shall decide ? H18 Norwich, Franklin county, Ohio. There class or mine? It may be a matter of taste, is but one public school in the subdistrict, bnt "de yurtibus non ili putandum." In defining the rights of citizenship and ;

to which the plaintiff sends his children settling its immunities by legal adjudication, for instructions; but the teacher, under we do well to remember that social equality the direction of the local directors, is not one of the elements of citizenship. It wholly neglects and refuses to impart in. can neither be created nor controlled by constitutions, legislative enactments, or judicial struction to them, or treat them as decisions It is the creature of a bigher and scholars, and denies them the educational more subtle law than any and all of these advantages of the school. There are not it. The "wr scripta" which prescribes, de twenty colored children in that subdig. fines and enforces lt. 18 recorded only in the trict, subject to enumeration for school affertions, the sensibilities, the intellectual tastes and afinities, in the inner ute of man

purposes; but, including the children of or woman,

the plaintiff, there are more than that la no event can a writ of mandamus 18. number of colored children in subdistrict que against these defendants. They have not number nine and the adjoining district of trade this classification nor established this separate school for colored children. It is the incorporated village of Hilliard, in the not within their tercitorial limits or jurisdic. same township. The township board of tion, nor is it under their control.

education has formed a joint district, T'he township board assessed the tax to build the house, and approprlated the money within the limits of the two districts, for to establish the grhool, and control and man- the education of colored children, as proage all its Interests, and directed the colored vided by law. They have erected a school children to go there.

These defendants themselves are subordinate house, and established a school in the co. and under the control of the township joint district for the education of colored board, 10 the exercise of their appropriate children, which school affords to such functions, and the discharge of all their duties.

children all the advantages and privilege colored children, such children may be ex. i them, and exclude such children from the other cluded from those provided for white children. , schools. 1882. People v. Board of Educa1883. People v. Gallagher, 93 N. Y. 438, 447. tion, 101 Il. 308, 318 (40 Am. Rep. 196).

Laws requiring separate schools for white In the absence of statute, boards of educa. and colored and prohibiting Intermarriage of tlon have no power to exclude colored children the races, are constitutional. 1879. Puit v. from any of the public schools, where there is Commissioners, 94 N. C. 709, 719.

no reason therefor other than that they are Statutes enforcing the separation of

the colored.

1881. Board of Education v. Tin. white and colored races in public conveyances non, 26 Kan. 1, 17. and in public schools are not unconstitutional. An act discriminating between white and 1892. Plessy, Ex parte, 11 So. Rep. 948, 950 black in distribution of school fund is vold. (45 La. Anp. 80; 18 L. R. A. 639); 1896. 1883. Claybrook v. Owensboro, 16 Fed. Rep. Plessy v. Ferguson, 163 U. S. 537, 545 (16 297, 302. Sup. Ct. Rep. 1138; 41 L.Ed. 236) : 1896.

It Is the duty of the directors of a school Martin v. Board of Education, 26 8. E. Rep.

district to provide equal school facilities for 348, 349 (42 W. Va. 514); 1883. State v.

the blacks and whites. They cannot clalm to Gray, 93 Ipd. 303; 1874. Cory v. Carter, 48 apportion the school funds and llmit the school Iad. 327, 354.

terms to each class according to their A statute providing for separate schools for scholastic population ; and when but a few Indians, from which all

negroes

"to the days more than three months are left of the fourth generation" are to be ercluded, is con- scholastic year, and they show no intention to stitutional. 1890. McMillan v. School Com- provide a school for that time, they may be mittee, 12 8. E. Rep. 330, 331 (107 N. C. 609; compelled to do so by mandamus. 1885.

Mad10 L. R. A. 823).

doi v. Neal, 45 Ark. 121, 125 (55 Am. Rep. Where the state has not authorized separate 540). common schools for colored children, a city The Louisiana act of. Feb. 23, 1869, to the board of education has no right to establish extent that It requires Mississippi river carriers

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ot a common school, equal to those of the the children of the plaintif as pupils to school for white children, in subdistrict the school of subdistrict number aine, number nine. The plaintif and his acted in good faith, and without any de children reside in the joint district, and sign of depriving them of a common are entitled to and have been offered all school education; but they claim that the advantages and privlleges of the joint they may properly insist that the children district school, which, though the school of the plaintit shall be educated to the house does not stand within subdistrict school established for colored children in number nine is as convenient and accsas- the joint district, and that they rightfully Itle for the children of the plaintif, as is refuse them instruction in the school for that in subdistrict number nine to some white children in subdistrict number nine. families of white residents in that subdis. It is quite apparent from this state of trict and a school house in the Joint dis- the case, that the proceeding is brought trict is as conveniently situated for the not because the children of the plaintit families of colored children in that dis- are excluded from the public schools, but trict as the school house in subdistrict to test the right of those having charge of number nine for the white families them to make a classification of scholars of that district. The board of education or the basis of color. This is the prindhave appropriated the full (804) share of pal question in the case, and we propose ail funds, on the basis of the enumeration to consider it without reference to the for school purposes in the township be question made as to the proper parties to longing to the joint district for colored the proceeding, for, in the view we take children, for the support of such schooi, of the case, this becomes unnecessary. which is equal in its advantages and privi. The system of public education in Ohio leges to any common school in the town 18 the creature of the constitution and ship, and is so sustained each year for a statutory laws of the state. The constilonger period than the school for white tution provides that "it shall be the duty children in subdistrict number nine can of the general assembly to pass suitable be maintained. During all the time the laws

to encourage schools and plaintik insisted on having his children the means of instruction." Sec. 7, Art 1. justructed in subdistrict number nine. In Again, it provides that “The general as the school established for white children, sembly shall make such provision, by an equally good school was open for them texation of otherwise, as, with the income in the joint district etsablished for colored (205) arising from the school trust fund, children, as provided by law, where they will secure a thorough and efficient sys could enjoy the full advantages and privi- tem of common schools throughout the leges of a public common school.

state." Sec. 2. Art. 6. The defendants, in refusing to recognize It is left to the discretion of the general to carry colored passengers in Louisiana in the lar county to vote on the question of removing same cabin with whites, is unconstitutional as the county seat, and to permanently locate the ID interference with foreign and Interstate same according to thelr vote, is not "special

Hall v. De Cuir, 95 U. 8. or local law for the beneft of individuals or . 485, 504 (24 L Ed. 664).

corporation," as those terms are used in See. A restaurant keeper who refuses to serve a 23. Art. of the Alabama constitution : and colored person with refreshments in a certain whether the object of such a law can or aindot part of his restaurant, for no other reason thao be provided for by a general statute, within he was colored. 18 clvilly liable, though be that provision of the constitution, 18 a question ofers to serve him by setting a table in a

of legislative discretion, and not of judicia! more private part of the house. 1890. Fergi. determination. 1877. Clarke v. Jack, 60 Ala Bon v. Gles. 46 N. W. Rep. 718, 720 (82 Mich. 271, 279. 388:9 L R. A. 589; 24 Am. St. Rep. 176).

The taxlng power vested in the legislature In digests and text books: 1s without limit, except such as may be pre- Right to an education-separation of racea scribed by the constitution itsell. 1876. State Cooley, Torts (2 ed.) P. •288. A. 3; 2 Kinkead, V. Lancaster Co. 4 Neb. 637, 641 (19 Am. Rep. Torto sec. 511, p. 982, n. 22. 841).

What rules and regulations

valid. The courts have no power to revise or annul Mecbem, Pub. Or. Bec.721, p. 474, a. 5. AD act of the legislature which is the mere ex. ercise of its discretionary, power, of which stat Constr. Sec. 119. p. 146, D. 2.

Requlrement of general laws. Sutherland, rests in the legislative judgment. Principle applied to a legislative apportiopment act,

Power of legislature onlimited except by and to other acts involving legislative discre constitution. Cooley, Const. Lim. (5 ed.) R tion. 1895. People Thompson, /

Rep. 307, 312 (155 11. 461): Instances where power to lesue bonds depled. 1894. Union Cent. L. 1os. Co. v. Chowping. Reese, Ultra Vires Sec. 225, p. 297, n. 5. 26 8. W. Rep. 982, 985 (86 Ter. 654 ; 24 L. R. A. 504): 1889.

10 Cent. Dig. \ 644; 6 Enc. law (2 d.) 8tate V. Denny, 21 N. E. 966, constitutional law; Ib. (2 ed.) 84 civil Rep. 262, 263 (118 Ind. 382; IL R. A. 79). I righto: 18 Ib. (1 d.)

754, police power: 21 In diesenting oplolop of Mitchell, J.

10. (1 ed.) 766, 768, acboolo; 25 15 11 d.) An act to authorize the people of a particu-1 74, taxation. 98

commerce.

1878.

are

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