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that he had any right or authority to admit her as such pupil, or that she had any right to be admitted as such pupil; but on the contrary, avers that there was a good and sufficient reason in this, that he was appointed as such Principal by the said Board of Education, and in refusing to receive the petitioner as a pupil, he acted under and in accordance with the rules and regulations adopted and prescribed by the said Board, one of which is as follows:

'Sec. 117. Separate Schools.-Children of African or Indian descent shall not be admitted into schools for whito children, but separate schools shall be provided for them in accordance with the California School Law.'

"And this defendant avers that in accordance with said rule and the Act of the Legislature therein referred to, cntitled 'an Act to amend an Act to provide for a system of common schools,' approved April 4th, 1870, two separate schools were and are provided for 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. "Further answering, defendant admits that the said Broadway Grammar School was then and is now of the description called a graded school, which signifies that the pupils in it are classified into distinct grades, according to the instruction which they may respectively require; but this defendant avers that the lowest grade in said Grammar School then was and now is the sixth grade, into which the petitioner had not received sufficient instruction to enable her to enter; and further avers that the said Mary Frances Ward was, prior to and at the time of her said application, and now is a member of and pupil in a school provided for colored children or children of Africau descent, under the said Act of the Legislature of the State of California, and in the seventh grade of said school.

"And this defendant further avers that the said Mary Frances, in applying for admission into the said Broadway Grammar School, did not present to him, as the Principal thereof, any certificate of transfer, as required by the said rules and regulations as adopted by the said Board of Education, one of which rules is as follows:

"Sec. 134. Transfers-Pupils desiring to be transferred from one school to another shall apply to their principal for a certificate, which shall state their name, age, grade, scholarship, deportment, residence and cause of transfer.

"And now, having fully answered, the said defendant asks that the prayer of petitioner be denied, and that said defendant be hence dismissed, with judgment for his costs in this proceeding incurred."

The case was submitted for decision upon these pleadings of the respective parties.

1. The motion that the writ issue, notwithstanding the matters alleged in the answer of the defendant, amounts to a general demurrer to the answer. It necessarily assumes that the matters set up in the answer, though true in point of fact, do not in law amount to a defense against the application for the writ. It is averred in the petition, and admitted in the answer, that the Broadway Grammar School, into which the petitioner seeks to be admitted as a pupil, is a graded school-that is to say, a school in which the pupils are classified into several distinct grades, "according to the instruction which they may respectively require," and the answer thereupon avers "that the lowest grade in said Grammar School then was, and now is, the sixth grade, into which the petitioner had not received sufficient instruction to enable ber to enter." It being, therefore, necessarily admitted for the purposes of this motion, that the attainments of the petitioner, in point of learning, were not sufficient to entitle her to be admitted in any class, even the lowest in the school, it would hardly require an argument to show that the defendant, as Principal of the school, correctly denied her application to be received as a pupil. It is claimed for the petitioner, however, that the refusal of the defendant not having been placed on that ground, but on the sole ground that the petitioner was a colored person, the defendant cannot now be permitted to set up the fact that she was not sufficiently advanced in learning to entitle her to be admitted.

There is no doubt that if a party, upon tender or demand made, or other proceeding en pais, had put his refusal upon

some particular omission or defect in the proceedings of his adversary, he will not afterwards be permitted, in support of such refusal, to allege a new or additional defect or insufficiency in those proceedings, especially if such defect or insufficiency be of such a character as that it might have been cured if it had been pointed out or relied upon at tho time. This is the ordinary and general rule, and it proceeds upon the idea that, having specially designated one or more supposed insufficiencies, the party thereby waives und abandons all others.

But it is obvious that this rule can have no just application to the case now under consideration. If the law, under the circumstances actually appearing in the record before us, forbade the respondent, as the Principal of the school, to admit the petitioner as a pupil therein, the circumstance that the respondent put his refusal on an untenable ground ought not, in this proceeding, to preclude an examination into the very right of the case. The claim of the petitioner to be admitted, and the corresponding duty of the defendant to admit her as a pupil, are governed by law; and if it appear, as it does unquestionably appear, upon the record before us, that she did not possess the acquirements, in point of learning, sufficient to entitle her, whatever her color, to be admitted to any class in the school, even the lowest, then the respondent must be considered to have correctly refused to entertain her application for admission, and the legal sufficiency of the particular reason assigned by him for such refusal becomes wholly immaterial.

The writ of mandamus is issued to compel the admission of a party to the enjoyment of a substantial right, from which he is unlawfully precluded; and it is necessary that the record should manifest the right claimed, as well as tho unlawful preclusion of the petitioner from the enjoyment of that right. Failing in either of these respects, the writ must be denied, for we know of no principle upon which we ought to compel the defendant to entertain the application of the petitioner here, when it appears to us by the record that, should he do so, it will then become his plain

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 hun.ired 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 the 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 attending 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 such school because of the mere status of citizenship; any and it is perhaps hardly necessary to add that assuredly no

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