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duty to again decline to admit her. Upon this view, the application for the writ must fail.

2. But we do not intend to put the decision of the case upon this point alone. We will, therefore, assume for this purpose, that the petitioner was sufficiently advanced in her studies to entitle her to enter some one of the classes of this school; and further, that upon her application for admission as a pupil, she presented the certificate required by the 134th rule of the Board, and also, that the only ground upon which she was denied admission to the school was that she was a child of African descent. These assumptions lead us to inquire whether, under the circumstances appearing, the respondent is justified by law in refusing to admit her. We say under the circumstances appearing, because it is shown by the record that in San Francisco separate schools are not only authorized by law, but are in fact maintained for the education of colored children, "with able and efficient teachers, and which afford equal advantages and are conducted under the same rules and regulations as those provided for the education of white children;" and because it also appears that the petitioner, at the time when she made application to be admitted into the Broadway Grammar School, was a pupil in attendance upon another public school conducted in San Francisco for the education of children of her color, which school, like the Broadway Grammar School, was a graded school, she being a pupil of the seventh grade or class therein. Recurring then to the inquiry whether the refusal of the respondent to admit the petitioner to the school under his charge is justified by the law, it will be seen that the statute of the State (Acts 1869-70, Sec. 56), enacts in terms that "the education of children of African descent, and Indian children, shall be provided for in separate schools," and if the statute be itself free from objection of a constitutional character, it is evidently a sufficient authority for the one hundred and seventeenth rule of the Board already recited, and in this view the respondent was not only justified in excluding the petitioner from the school in his charge, but in tho face of the statute and the rule referred to, he had no

discretion to admit her as a pupil therein. It is not claimed by the learned counsel for the petitioner, as we understand him, that the statute in question is forbidden by the Constitution of the State. The argument is that the exclusion of the petitioner from this particular school is contrary to the Thirteenth and Fourteenth Amendments of the Federal Constitution lately adopted. We are, however, unable to perceive in what way it is to be maintained that the State law or the action of the respondent thereunder are in contravention of the Thirteenth Amendment referred to, by which Amendment slavery and involuntary servitude are forbidden. It would seem, indeed, too plain to require argument, that the mere exclusion of the petitioner from this particular school, does not assume to remit her to a condition of slavery or involuntary servitude, in the sense of the Constitution, or in any sense at all; or that there is anyeven the slightest-relation between the case here and the prohibition contained in the Amendment referred to.

Nor is it perceived that the State Law in question, in obedience to which the respondent proceeded, is obnoxious to those provisions of the Fourteenth Amendment to the Federal Constitution securing the privileges and immunities of citizens of the United States, and protecting all persons against the deprivation of life, liberty or property, without due process of law. That Amendment, so far as claimed to be material to the question, is as follows: "No State shall make or enforce any law which shall abridge the privileges and 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."

It will indeed be readily conceded that the privilege accorded to the youth of the State, by the law of the State, of 2ttending the public schools maintained at the expense of the State, is not a privilege or immunity appertaining to a citizen of the United States as such; and it necessarily follows, therefore, that no person can lawfully demand admission as a pupil in any such school because of the mere status of citizenship; and it is perhaps hardly necessary to add that assuredly no

person can be said to have been deprived of either life, liberty or property, because denied the right to attend as a pupil at such schools, however obviously insufficient and untenable be the ground upon which the exclusion is put.

The last clause of so much of the Amendment as has been recited, however, forbids the State to "deny to any person within its jurisdiction the equal protection of the laws," and it remains to inquire if the statute of the State, providing for a system of common schools, in so far as it directs that schools shall be maintained for the education of colored children separate from those provided for the education of white children, be obnoxious to this portion of the Federal Constitution.

The opportunity of instruction at public schools is afforded the youth of the State by the statute of the State, enacted in obedience to the special command of the Constitution of the State, directing that the Legislature shall provide for a system of common schools, by which a school shall be kept up and supported in each district, at least three months in every year, etc. (Art. 19, Sec. 3.) The advantage or benefit thereby vouchsafed to each child, of attending a public school is, therefore, one derived and secured to it under the highest sanction of positive law. It is, therefore, a right—a legal right—as distinctively so as the vested right in property owned is a legal right, and as such it is protected, and entitled to be protected by all the guarantees by which other legal rights are protected and secured to the possessor.

The clause of the Fourteenth Amendment referred to did not create any new or substantive legal right, or add to or enlarge the general classification of rights of persons or things existing in any State under the laws thereof. It, however, operated upon them as it found them already established, and it declared in substance that, such as they were in each State, they should be held and enjoyed alike by all persons within its jurisdiction. The protection of law is indeed inseparable from the assumed existence of a recognized legal right, through the vindication of which the protection is to operate. To declare, then, that each

person within the jurisdiction of the State shall enjoy the equal protection of its laws, is necessarily to declare that the measure of legal rights within the State shall be equal and uniform, and the same for all persons found thereinaccording to the respective condition of each-each child as all other children-each adult person as all other adult persons. Under the laws of California children or persons between the ages of five and twenty-one years are entitled to receive instruction at the public schools, and the education thus afforded them is a measure of the protection afforded by law to persons of that condition.

The education of youth is emphatically their protection. Ignorance, the lack of mental and moral culture in earlier life, is the recognized parent of vice and crime in after years. Thus it is the acknowledged duty of the parent or guardian, as part of the measure of protection which he owes to the child or ward, to afford him at least a reasonable opportunity for the improvement of his mind and the elevation of his moral condition, and, of this duty, the law took cognizance long before the now recognized interests of society and of the body politic in the education of its members had prompted its embarkation upon a general system of education of youth. So a ward in chancery, as being entitled to the protection of the Court, was always entitled to be educated under its direction as constituting a most important part of that protection. The public law of the State-both the Constitution and Statute-having established public schools for educational purposes, to be maintained by public authority and at public expense, the youth of the State are thereby become pro hac vice the wards of the State, and under the operations of the constitutional amendment referred to, equally entitled to be educated at the public expense. It would, therefore, not be competent. to the Legislature, while providing a system of education for the youth of the State, to exclude the petitioner and those of her race from its benefits, merely because of their African descent, and to have so excluded her would have been to deny to her the equal protection of the laws within the intent and meaning of the Constitution.

40361 0-59-pt. 4-34

But we do not find in the Act of April, 1870, providing for a system of common schools, which is substantially repeated in the Political Code now in force, any legislative attempt in this direction; nor do we discover that the statute is, in any of its provisions, obnoxious to objections of a constitutional character. It provides in substance that schools shall be kept open for the admission of white children, and that the education of children of African descent must be provided for in separate schools.

In short, the policy of separation of the races for educational purposes is adopted by the legislative department, and it is in this mere policy that the counsel for the petitioner professes to discern "an odious distinction of cast, founded on a deep-rooted prejudice in public opinion.' But it is hardly necessary to remind counsel that we cannot deal here with such matters, and that our duties lie wholly within the much narrower range of determining whether this statute, in whatever motive it originated, denies to the petitioner, in a constitutional sense, the equal protection of the laws; and in the circumstances that the races are separated in the public schools, there is certainly to be found no violation of the constitutional rights of the one race more than of the other, and we see none of either, for each, though separated from the other, is to be educated upon equal terms with that other, and both at the common public expense. A question similar to this came before the Supreme Judicial Court of the State of Massachusetts in 1849 (Roberts v. The City of Boston, 5 Cushing R. 198), and was determined by the Court in accordance with the views just expressed by us. That was an action on the case brought by a colored child against the city to recover damages claimed by reason of her exclusion from a public school as a pupil. It appeared that primary schools to the number of about one hundred and sixty were maintained for the instruction of children of both sexes between five and seven years of age, and that of these schools two were appropriated to the exclusive instruction of colored children, and the residue to the exclusive instruction of white children. It also appeared that the plaintiff had been excluded from the


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