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schools. Upon the written application of at least ten such children to any Board of Trustees, or Board of Education, a separate school shall be established for the education of such children; and the education of a less number may be provided for by the Trustees, in separate schools, or in any other manner.

Sec. 57. The same laws, rules and regulations, which apply to schools for white children, shall apply to schools for colored.

The Board of Education of the city and county adopted the following regulation which existed at the time when the cause of action arose in this caso:

“Sec. 117. Separate schools. Children of African or Indian descent shall not be admitted into schools for white children; but separate schools shall be provided for them in accordance with the California School Law.” (The People v. The Board of Education of Detroit, 18 Mich. 401.)

The statutes of Michigan provided that “all residents of any school district shall have an equal right to attend any school therein; provided that this shall not prevent the grading of schools according to the intellectual progress of the pupils, to be taught in separate places when espedient."

Held: That a mandamus would be awarded to compel the admission of a colored pupil into the public schools where white children were taught, although separate schools for colored children had been established.

Note, that the cause of action accrued in April, 1863, and before the Fourteenth Amendment was adopted, on July 21-23, 1868.

This case is therefore only a construction of the then existing laws of Michigan, and is in point in the case in land, only as showing that “an equal right to attend any school in the district” is not secure by the establishment of colored schools.

(State v. Dufy, 7 Nevada, 342; TVillianis v. School Directors, Wright, 578; Gray v. State, 4 Ohio, 353; Jeffries v. Anl.chy, 11 Obio, 376; Thacker v. Hauk, 11 Ohio, 371; Chulmers v. Stewart, 11 Ohio, 386, 387; Lane v. Baker, 12 Obio, 237; Stewart v. Sculhard, 17 Ohio, 402.)

In Clark v. The Buard of Directors, etc., 24 Iowa, 267, it was held that under a clause in the Constitution of that Stato, ordaining that “the Board of Education shall provide for the education of all the youths of the State, through a system of common schools," the Board of School Director's bad no discretionary power to require colored cliildreu to attend a separate school. Before the adoption of the Thirteenth and Fourteenth Amendments to the Constitution of the United States, this decision would not, probably, have been in point in a case arising under the Constitution of the State of California, which denied to colored children any political status whatsoever. But since those anendments have given the political status of citizens to such children, when either native born or naturalized, the decision in 24 Iowa, ut supra, becomes an authoritative construction of the meaning of the phrase "common schools,” in Article IX, sections two and three of the Constitution of California. “Common schools ” does not mean “ordinary” schools. It means public, common to all, in a political sense; and tbe words common and public are used as equivalept terms in the constitutions and statutes of all the States. Under the decision in 24 Iowa, therefore, no child who is a citizen of California can be excluded, by reason of color or race, from any of the common or public schools of the State.

This is a case which can hardly be nrgued, any further than its statement alone is an argument. It is admitted now, by the highest masters of thought, eren among theologians, that the esistence of God himself cannot be prored, uor the duty of children to love and cherish their parents, nor that of general benevolence. But we know that God exists, and that these duties are of imperative obligation. We know that persons of African descent have been degraded by an odious hatred of caste, and that the Constitution of the United States has provided that this social repugnance shall no longer be crystallized into a political disability. This was the object of the Fourtcenth Amendment, and its terms are above being the subject of criticism. We know, too, that a State must always Lavo

laws equal to its obligations. This was always tiro as a proposition of municipal law. The world is still ringing with the echoes of its announcement as a proposition of the public law of nations, by the highest tribunal that erer existed in the world, which has just closed its session at Genera.

Williams and Thornion, for the Defendant.

The Fourteenth Amendment, while it raises the negro to the status of citizenship, confers upon the citizen no new privileges or immunities. It forbids any State to abridge by legislation any of those privileges or immunities secured to any citizen by the second section of the fourth article of the Federal Constitution. They are those great fundamental rights which belong to the citizens of every free and enlightened country, and are so defined in the decisions of all the Courts. (Cooley's Const. Lim. 15, note 3.)

The right of admission to our public schools is not one of those privileges and immunities. They were unknown, as they now exist, at the time of the adoption of the Federal Constitution; that instrument is silent upon the subject of education, and our public schools are wholly the creation of our own State Constitution and State laws.

The whole system is a beneficent State institution-a grand State charity-and surely those who create the charity have the undoubted right to nominate the beneficiaries of it.

The Fourteenth Amerdment provides that “Congress shall have power to enforce, by appropriate legislation, the provisions of this Article.”

Congress has exercised this power, and given us a legislatire construction of this article, in accordance with that for which we contend. (U. S. Statutes, Vol. 16, p. 141, Sec. 16; Id. Vol. 14, p. 27, Sec. 1.)

But we find a full answer to this proceeding in the fact that colored children are not excluded from the public schools, for separate schools are provided for them, conducted under the same rules and regulations as those for the white, and in which they enjoy equal, and in some respects superior educational advantages.

So far as they are concerned, no rule of equality is violated--for while they are excluded from the schools for the white, the white are excluded from the school provided for the negro. (Vide Act of April 4, 1870, Sacs. 53 -56: Swetts Report, p. 13).

This Act of the Legislature is constitutional. TLO Constitution of California on this subject differs materially from most of our State Constitutions. It makes it the duty of the Legislature to "provide for a system of common schoools,” thus leaving that body to exercise its own discretion, and to provide such system as it deems wise and just.

The Act of April 4th, 1870, embodies that system; it is the expression of the sovereign will, and is wise, just and politic. (Roberts v. Boston, 5 Cush. 198, 206; The State ex rel. elc., v. Cincinnati, 19 O. 178, 197; Van Camp v. Biard of Education, I 0. State, 406, 414; IVestches'er d Phil. R. R. v. Miles, 55 Pend. 212; Pcople, etc., v. Board of Education, 18 Mich. 400, 412; State of Nev. ex rel. etc., v. Dufy, 7 Nevada, 342; Clark v. Board of Directors, 24 Iowa, 272.)

Independent of all such considerations, under the police power of the State, the Legislature would have the right, by way of classification, to provide separate schools for the white and black, confining each to its appointed sphere.

This power is most comprehensive. It is inherent in every state, and inalienable. It exerts itself upon persons and property, whenever the safety and welfare of society is endangered. It is exercised for the general comfort, health and prosperity of the people, and for the preservation of the morality, peace and dignity of the commonwealth. (Cooley's Cou. Lim. 572, 574, 576, note 2, 33, note 4.)

Confining colored children to schools specially organized for them, does not impair or abridge any right, conceding that the right exists; it is a simple regulation of rights, with a view to the most convenient and beneficial enjoyment of them by all, and deprives no one of what is justly his own. (Cooley's Con. Lim. 596–7.)

By the Court, WALLACE, C. J.:
This is an application made to this Court for a writ of

mandamus directing the defendant to receive the petitioner as a scholar in the school of which he is the principal. The petition for the writ is as follows:

Harriet A. Ward, boing sworn, says: “I am the mother of Mary Frances Ward, who is under the age of fourteen years-namely, of the age of between eleven and twelve years. I am the wife of A. J. Ward, and by that marriage the mother of said Mary Frances Ward. We are all of Af. rican descent, colored citizens of the United States and of the State of California, and at present, and continuously for thirteen years now last past, residents of the city and county of San Francisco, and for six months last past, and now, residing at No. 1,006 Pacifio street, in the city and coun. ty of San Francisco. The city and county of San Francisco is not now, nor for the year last past has been divided into school districts; but by law, and also by the custom adopted and established by the Board of Education of said city and county, pupils residing therein have a right to be received as such at the public school nearest their residence, in case such school is not full, and they have made sufficient progress to be received therein.

“The nearest public school to our said residence in said city and county for six months now last past, and now, is the so-called Broadway Grammar School, on Broadway street, in said city and county, between Powell and Mason streets; a public school under the control of the Board of Education of said city and county, sustained by taxes raised in said city and county for the support of public schools therein, and at the time the application hereinafter mentioned was made, was, and ever since then has been, and is now, in charge of Noah F. Flood as Principal thereof, appointed thereto boy, and holding office as such under the said Board of Education.

“On or about the 1st day of July, A. D. 1872, by the consent and direction of my said husband, I took the said Mary Frances Ward with me to the said Broadway Grammar School, the same being in session, and there found the said Noah F. Flood, then and there being such Principal of said school, and then and there as such being the proper and only

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