cannot be enforced without abridging the privileges [200] of citizens within the meaning of the amendment to the constitution. again, the enforcement of this law would be a violation of this amendment, because it would compel a certain class of citizens to submit to the management and control of their school fund to a board not chosen by themselves, while it secures to another class the privilege of having their proportion of the school fund appropriated and managed by the electors elected by the voters of the subdistrict. In this particular the statute secures to one class a privilege it denies to another. In Van Camp v. Board of Education, 9 Ohio St. 406, our school law was held to be one of classification and not of exclusion. Plass legislation was then permitted; color could then he made a basis of classification, as well as age or sex. without violating the constitution of the United States, but not so since the amendment. C. N. Olds, for defendants: The school for colored children is established in strict conformity to the school laws of this state (8. & 8. 705, Sea 31), and is fully equal, in every respect, to the school [201] for white children, in subdistrict No. 9, in affording all the advantages and privileges of a common school education. This provision of the school laws of the state, has been construed and fully sustained by this court, in the case of Van Camp v. Board of Education, 9 Ohio St. 406, in which the court holds that this law for colored schools is one of classification, and not of erclusion; providing for the education of all youth within the prescribed ages. Since this decision, the law has been amended (8. & S. 705), and made more liberal than the one in force at the date of that decision. The school or colored children may now be, and the one established in this case, 18, in fact, equal in every particular, if not superior to the one established for white children. It is the The only difference is the classification on account of color. The relator claims the right to send his children to the public school which is kept in the district in which he resides. only school within the district. Our school law would drive his children forth to some other district where there is maintained a separate school for colored children. To refuse this writ would be to enforce a law which denies to him the privileges that belong to other citizens living in the same aistrict. They possess the advantages and conveniences of having their children instructed in a school located within the limits of their subdistrict, and under the control of officers Elected by themselves. To deny the reiator these advantages and conveniences, is to abridge his privileges, since the denial is placed solely on the ground that he is colored. The citizen is bound to give obedience, and the government must furnish protection. The relator "cannot be a citizen to obey, and an allen to demand protection." four miles from the school in which it is allotted. 1876. State v. Cincinnati (Bd. of Ed.) 7 Re. 129 (1 Bull. 139). The power to establish separate schools for colored children was conferred by Sec. 4008 Rev. Stat., and not by Sec. 4013 Rev. Stat. While under the latter section power is conferred on boards of education to make such assignments of the youth of their respective districts, to the schools established by them, such power cannot be exercised with reference to the race or color of the youth; and Sec. 4008 Rev. Stat. having been repealed by the act of February 22. 1887 (84 0. L. 34), separate schools for colored children have been abolished, and no regulation can be made under Sec. 4013 Rev. Stat., that does not apply to all children irrespective of race or color. See Oxford (Bd. of Ed.) v. State, 45 0. S. 555 (16 N. E. Rep. 373); see also, Cist v. State, 21 O. 8. 330. All legislative power is vested in the general assembly, by Sec. 1. Art. 2 of the constitution of Oblo, subject to the limitations and restrictions contained in other provisions of that instrument, and in the constitution of I insist that such classification is not in conflict with either the letter or the spirit of the fourteenth amendment, and that the law clearly confers upon the school authori tles the right to make this classification at their own discretion. If made in the exercise of a reasonable discretion and in good faith their action is not subject to review by this or any other court. The members of the township board of education are public officers. whose powers and Cuties are clearly prescribed and defined by law. S. & C. 1348, Sec. 1; 1350, Sec. 11; 1351, Secs. 13, 14, 15; S. & S. 705, Sec. 31. The various powers of the board of education are largely discretionary, to be exercised according to their own best judgment, and with due regard to the peculiar circumstances, 1880. Peters v. McWil the United States. Under the provisions of Sec. 3946 Rev. Stat.. wants, interests, and even prejudices, if you The relator should look to the township please. of each particular locality or neighboard for redress, or should ask this court to borbood. send its process and mandates to them, and not to these defendants. manner If, in their discretion, they nay classify either schools or scholars, in any whatever for the promotion of the best interests of schools and of education, basing their classification upon age, or sex, or scholar. ly attainment, as they undoubtedly may and do every day; why may they not also [202] classify by color, if, in their judgment, it becomes necessary or expedient for them to do 80? In this case, the classification based upon color, has not "abridged any of the privileges or immunities" of the relator, as a citizen of the United States, nor denied to him "the equal protection of the laws of this state, as a citizen of the state. He has every right and privilege under the school laws of this state that I have. The only difference be tween us is that I am required to send my children to one schoolhouse, and he to send favor or mine? Who shall decide? His class or mine? It may be a matter of taste, but "destibus non disputandum." his to another. Is that discrimination in his [203] DAY, J. This is an application for a writ of mandamus against the local school directors and teacher, in a subdistrict of a township to admit the children of the plaintiff to the privileges of a specific district school. By agreement the case is submitted upon the facts stated in the information and answer, which are substantially as follows: The plaintiff is a colored citizen having three children, and resides in school subdistrict number nine in the township of Norwich, Franklin county, Ohio. There is but one public school in the subdistrict, to which the plaintiff sends his children In defining the rights of citizenship and 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 incan neither be created nor controlled by conto them, or treat them as stitutions, legislative enactments, or judicial struction decisions. It is the creature of a higher and scholars, and denies them the educational more subtle law than any and all of these. advantages of the school. There are not School boards can neither make nor unmake it. The "er scripta" which prescribes, de- twenty colored children in that subdisfines and enforces it. is recorded only in the trict, subject to enumeration for school affections, the sensibilities, the intellectual purposes; but, including the children of tastes and affinities, in the inner life of man the plaintiff, there are more than that or woman. number of colored children in subdistrict number nine and the adjoining district of the incorporated village of Hilliard, in the same township. The township board of education has formed a joint district, within the limits of the two districts, for the education of colored children, as provided by law. They have erected a school house, and established a school in the joint district for the education of colored children, which school affords to such children all the advantages and privilege colored children, such children may be ex- 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. tlon, 101 Ill. 308, 318 (40 Am. Rep. 196). In no event can a writ of mandamus is sue against these defendants. They have not wade this classification nor established this separate school for colored children. It is not within their territorial limits or jurisdiction. nor is it under their control. The township board assessed the tax to build the house, and appropriated the money to establish the school, and control and manage all its interests, and directed the colored children to go there. These defendants themselves are subordinate co. and under the control of, the township board, in the exercise of their appropriate functions, and the discharge of all their duties. Laws requiring separate schools for white and colored and prohibiting intermarriage of the races, are constitutional. 1879. Pult v. Commissioners, 94 N. C. 709, 719. Statutes enforcing the separation of the white and colored races in public conveyances and in public schools are not unconstitutional. 1892. Plessy, Ex parte, 11 So. Rep. 948, 950 (45 La. Ann. 80; 18 L. R. A. 639); 1896. Plessy v. Ferguson, 163 U. S. 537, 545 (18 Sup. Ct. Rep. 1138; 41 L. Ed. 256): 1896. Martin v. Board of Education, 26 S. E. Rep. 348, 349 (42 W. Va. 514); 1883. State v. Gray, 93 Ind. 303; 1874. Cory v. Carter, 48 Ind. 327, 354. A statute providing for separate schools for Indians, from which all negroes "to the fourth generation" are to be excluded, is constitutional. 1890. McMillan v. School Committee, 12 8. E. Rep. 330, 331 (107 N. C. 609; 10 L. R. A. 823). Where the state has not authorized separate common schools for colored children, a city board of education has no right to establish 1 In the absence of statute, boards of education have no power to exclude colored children from any of the public schools, where there is no reason therefor other than that they are 1881. colored. Board of Education v. TIAnon, 26 Kan. 1, 17. An act discriminating between white and black in distribution of school fund is vold. 1883. Claybrook v. Owensboro, 16 Fed. Rep. 297, 302. It is the duty of the directors of a school district to provide equal_school facilities for the blacks and whites. They cannot claim to apportion the school funds and limit the school terms to each class according to their scholastic population; and when but a few days more than three months are left of the scholastic year, and they show no intention to provide a school for that time, they may be compelled to do so by mandamus. 1885. Maddox v. Neal, 45 Ark. 121, 125 (55 Am. Rep. 540). The Louisiana act of Feb. 23, 1869, to the extent that it requires Mississippi river carriers 97 ot a common school, equal to those of the the children of the plaintiff as pupils in school for white children, in subdistrict the school of subdistrict number nine, number nine. The plaintiff 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 privileges of the joint they may properly insist that the children district school, which, though the school of the plaintiff shall be educated in the house does not stand within subdistrict school established for colored children in number nine is as convenient and access- the joint district, and that they rightfully ible for the children of the plaintiff, 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 plaintif 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 is 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 princihave appropriated the full [204] 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 school, 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 is 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 plaintiff insisted on having his children the means of instruction." Sec. 7, Art. 1. fustructed in subdistrict number nine. in Again, it provides that "The general asthe 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 syscould 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 to carry colored passengers in Louisiana in the same cabin with whites, is unconstitutional as an interference with foreign and Interstate commerce. 1878. Hall v. De Cuir, 95 U. 8. 485, 504 (24 L. Ed. 554). A restaurant keeper who refuses to serve a colored person with refreshments in a certain part of his restaurant, for no other reason than he was colored, is civilly liable, though he offers to serve him by setting a table in a more private part of the house. 1890. Ferg Bon v. Gies. 46 N. W. Rep. 718, 720 (82 Mich. 358; 9 L. R. A. 589; 24 Am. St. Rep. 175). The taxing power vested in the legislature is without limit, except such as may be prescribed by the constitution itself. 1876. State V. Lancaster Co. 4 Neb. 537, 541 (19 Am. Rep. 641). The courts have no power to revise or annul an act of the legislature which is the mere exercise of its discretionary power, or which rests in the legislative judgment. Principle applied to a legislative apportionment act, and to other acts involving legislative discretion. 1895. People Thompson, 40 N E. Rep. 307, 312 (155 In. 451): 1894. Union Cent. L. Ins. Co. v. Chowning, 26 8. W. Rep. 982, 985 (86 Tex. 654; 24 .. R. A. 504): 1889. State v. Denny, 21 N. E. Rep. 252, 283 (118 Ind. 382; L. R. A. 79). In dissenting opinion of Mitchell, J. An act to authorize the people of a particu98 It is left to the discretion of the general lar county to vote on the question of removing the county seat, and to permanently locate the same according to their vote, is not a "special or local law for the benefit of individuals or a corporation," as those terms are used in Sec. 23, Art. 4 of the Alabama constitution; and whether the object of such a law can or cannot be provided for by a general statute, within that provision of the constitution, is a question of legislative discretion, and not of judicial determination. 1877. Clarke v. Jack, 60 Ala 271, 279. In digests and test books: Right to an education-separation of races. Cooley, Torts (2 ed.) p. 288. n. 3; 2 Kinkead, Torts Sec. 511, p. 982, n. 22. are What rules and regulations valid. Stat. Constr. Sec. 119, p. 146, n. 2. Power of legislature unlimited except by constitution. Cooley, Const. Lim. (5 ed.) p. 129, n. 2. Instances where power to issue bonds denied. Reese, Ultra Vires Sec. 225, p. 297, n. 5. 966, constitutional law; Ib. (2 ed.) 84; civil 10 Cent. Dig. 644; 6 Enc. Law (2 ed.) rights: 18 Ib. (1 ed.) 754, police power: 21 Ib. (1 ed.) 766, 768, schools; 25 Ib. (1 ed.) 74, taxation. assembly, in the exercise of the general are hereby authorized and required to eslegislative power conferred upon it, to tablish, within their respective jurisdetermine what laws are "suitable” to se- dictions, one or more separte schools cure the organization and management for colored children, when the whole of the contemplated system of common number, by enumeration, exceeds schools, without express restriction, ex- twenty, and when such schools will cept that "no religious or other sect or afford them, as far as practicable, sects shall ever have any exclusive right the advantages and privileges of a comto, or control of, any part of the school mon school education; and all such funds of the state." Sec. 2, Art. 6. schools so established for colored children Under these powers and requirements shall be under the control and manageof the constitution, the general assembly ment of the board of education, or other has attempted to organize, by "suitable school officers who have in charge the edlaws," an "efficient system of common ucational interests of the other schools; schools," for the purpose (as expressed in and such schools for colored children Sec. 63 of the act of 1853) [51 O. L. 449; shall be continued in operation each year 3 Curwen 2228; see Sec. 395, Rev. Stat.] until the full share of all the school "of affording the advantages of a free ed- finds of the township or district belongucation to all the youth of this state." ing to said colored children, on the basis of enumeration, shall have been expended; provided, that when the number of colored children residing in adjoining townships or districts, whether in the same or in different counties, shall exceed twenty, the boards of education of said townships or districts so situated, may form a joint district for the education of colored children, and said school shall be under the control Under this system the territory of each organized township, not included in a city or incorporated village, composes "one school district for all purposes connected with the general interests of education in the township," and is "confided to the management and control of a board of education," which is composed of the several clerks of each of the boards of local directors elected in the subdistricts and direction of the board of education of into which the townships are divided. The public schools in cities and villages are confided to the management of boards of education elected therein. raised on the number of said colored chil-. dren, and the money so set apart shall be appropriated each year for the education of such colored children, under the direction of said board.” the township or district in which the school house is situated. When the whole number of colored children enumerated is less than twenty, or when, owing to the It is made the duty of the boards of ed great distance they reside form each other, ucation to "prescribe rules and regula- a separate school for colored children is tions for the government of all the com-impracticable, the board of education shall mon schools within their jurisdiction." set apart the full share of school funds They are authorized to establish schools for the study of the German language, to establish graded schools, and to classify the children so as to secure to all an equitable participation in the advantages thereof. They are authorized to change [207] As to the validity of the provisions and alter the subdistricts, and the number of this section we express no opinion furof scholars assigned to each. The boards ther than is necessary to the determinaof education of adjoining townships are tion of this case, in which it clearly apauthorized to constitute subdistricts out pears that the clauses applicable to it did of parts of their townships. Amongst not operate to exclude the colored children the numerous express powers conferred of that locality from a common school [206] by the statute on boards of educa- education equal, to that of the other tion for the regulation of public schools, youth. Were this not the fact, more is that of Sec. 31, authorizing the es- doubt would arise. But where both tablishment of schools for colored child-classes of children, as in the case before ren. The section, as amended in 1864 [61 O. L. 32; 1 Sayler 534] (S. & S. 705) [repealed Sec. 7437 Rev. Stat. 1880 (No. 1272)], is as follows: "Section 31. The township boards of education in this state, in their respective townships, and the several other boards of education, and the trustees, visitors and directors of schools, or other officers having authority in the premises, of each city or incorporated village, shall be and they us, enjoy substantially equal advantages in different schools, and the separate school for colored children is clearly authorized by the statute, the only doubt that arises is as to the constitutional validity of the law which authorizes such separation on the basis of color; and that is the real question in this case. The constitution confers the legislative power of the state upon the general assembly, and "that inculdes all legislative 99 tion on the basis of color was sanctioned, and it was held, that, inasmuch as the statute "is a law of classification and not of exclusion," colored children "are not, as of right, entitled to admission into the common schools set apart under said act for the instruction of white youths." The application, however, made in that case, of the principle settled by it, we are not required to approve or disapprove in this, for in that case there had not been as there was in this, a separate school established for colored children. It would seem, then, that under the constitution and laws of this state, the right to classify the youth of the state for school purposes, on the basis of color, and to assign them to separate schools for education, both upon well recognized legal principles and the repeated adjudications of this court, is too firmly established to be now judicially disturbed. [209] But it is claimed that the law authorizing the classification in question contravenes the provisions of the fourteenth amendment of the constitution of the United States, and is, therefore abrogated thereby. power which the object and purposes of the state government may require, and we must look to other provisions of the constitution to see how far, and to what extent, legislative discretion is qualified or restricted." (Per Gholson, J. in Baker v. Cincinnati, 11 Ohio St. [534] 542.) The constitution contains no restrictions upon the "legislative discretion," in regard to the classification of the youth of the state for school purposes. Those, then, enjoy ing equal privileges with all, cannot complain of a want of power to regulate the manner in which such privileges shall be enjoyed, for in this, as in all cases, the legislature has the power to regulate, for the general good, the mode in which parties shall enjoy their rights, without coming in conflict with any of those constitutional principles which are established for the protection of private rights. But the question of legislative power to authorize the classification of the youth of the state for school purposes on the basis of color, has been determined by the supreme court of this state, both under the present constitution and that of 1802. Sec. 25 of the bill of rights in the latter contains express provisions guaranteeing "equal participation" to all the schools endowed, in whole or in part, from the "Section 1. All persons born or naturrevenue arising fron donations made by alized in the United States, and subject to the United States [208] for the support the jurisdiction thereof, are citizens of of schools. But it was held in State v. the United States and of the state wherein Cincinnati, 19 Ohio 178, that inasmuch as they reside. No state shall make or en"the whole subject of organizing and reg-force any law which shall abridge the ulating schools is very properly left to the general assembly, in the exercise of its legislative powers," an act to authorize the establishment of separate schools for the education of colored children was constitutional; and it was said by Hitchcock, C. J., in that case, that, "as a matter of policy, it is unquestionably better that the white and colored youth should be placed in separate schools, and that the school fund should be divided to them in proportion to their numbers." After this expression of opinion by that eminent judge, we might at least hesitate to conclude, that the classification of the youth of the state for school purposes, on the basis of color, was an unauthorized or unreasonable exercise of the legislative discretion in the regulation of the public schools of the state. The section of the amendment relied upon is as follows: privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Unquestionably all doubts, wheresoever they existed, as to the citizenship of colored persons, and their right to the "equal protection of the laws," are settled by this amendment. But neither of these was denied to them in this state before the adoption of the amendment. At all events, the statutes classifying the youth of the state for school purposes on the basis of color, and the decisions of this court in relation thereto, were not at all based on a denial that colored persons were citizens, or that they are entitled to the equal protection of the laws. It would But in Van Camp v. Board of Education, seem, then, that these provisions of the 9 Ohio St. 406, the question under consi- amendment contain nothing conflicting deration was expressly determined by with the statute authorizing the classificathis court, upon the original statute, tion in question, nor the decisions herewhich, so far as material to the question, tofore made touching the point in controwas the same as that under which the versy in this case. Nor do we understand classification was made in this case. In that the contrary is claimed by counsel in that case legislative power of classifiaca-the case. But the clause relied on, in be100 |