:

primary school nearest her father's residence, which was a school devoted exclusively to the instruction of white children, and that the school appropriated to the education of colored children nearest her father's residence was about a fifth of a mile more distant therefrom than was the school from which she had been excluded. The Constitution of the State of Massachusetts contained the following clauses, which were relied upon by the counsel for the plaintiff to show that the separation of colored from white children for educational purposes was not justified by law. (Part 1, Art. 1:) "All men are born free and equal, and have certain natural, essential and inalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties, that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Art. 6: No man nor corporation or association of men, have any other title to obtain advantages or particular and exclusive privileges distinct from those of the community, than what arise from consideration of services rendered to the public." ***

It will be seen that the language of the Massachusetts Constitution prohibiting "particular and exclusive privileges," was fully as significant, to say the least, in its bearing on the general question in hand as is that of the Fourteenth Amendment of the Federal Constitution, securing "the equal protection of the laws."

The argument of the counsel for the plaintiff in the Massachusetts case, much like that of the counsel for the petitioner here, was that the separation of the races for educational purposes, "is the occasion of inconveniences to colored children, to which they would not be exposed if they had access to the nearest public schools; it inflicts upon them the stigma of caste; and although the matters taught in the two schools may be precisely the same, a school exclusively devoted to one class must differ essentially, in its spirit and character, from that public school known to the law, where all classes meet together in equality."

The opinion of the Court, delivered by Mr. Chief Justice

SHAW, maintained the rightful authority of the school committee, to separate the colored children from the white children in the public schools of the city of Boston, and in the course of the opinion, the learned Chief Justice remarked as follows: "It will be considered that this is a question of power, or of the legal authority of the committee intrusted by the city with this department of public instruction; because if they have the legal authority, the expediency of exercising it in any particular way is exclusively with them. The great principle advanced by the learned and eloquent advocate of the plaintiff, is that by the Constitution and laws of Massachusetts, all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. This, as a broad general principle, such as ought to appear in a declaration of rights, is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our Constitution of free government. But when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law, for their maintenance and security. What those rights are, to which individuals in the infinite variety of circumstances by which they are surrounded in society, are entitled, must depend on laws adapted to their respective relations and conditions.

""

Conceding, therefore, in the fullest manner, that colored persons, the descendants of Africans, are entitled by law, in this commonwealth, to equal rights, constitutional and political, civil and social, the question then arises whether the regulation in question, which provide separate schools for colored children, is a violation of any of these rights.

"Legal rights must, after all, depend upon the provisions of law; certainly all those rights of individuals which can

be asserted and maintained in any judicial tribunal. The
proper province of a declaration of rights and constitution
of government, after directing its form, regulating its or-
ganization and the distribution of its powers, is to declare
great principles and fundamental truths, to influence and di-
rect the judgment and conscience of legislators in making
laws, rather than to limit and control them, by directing what
precise laws they shall make. The provision that it shall be
the duty of legislatures and magistrates to cherish the in-
terest of literature and the sciences, especially the Univer-
sity of Cambridge, public schools and grammar schools
in the towns, is precisely of this character. Had the Leg-
islature failed to comply with this injunction, and neglected
to provide public schools in the towns; or should they so
far fail in their duty as to repeal all laws on the subject,
and leave all education to depend on private means, strong
and explicit as the direction of the Constitution is, it would
afford no remedy or redress to the thousands of the rising
generation, who now depend on these schools to afford
them a most valuable education, and an introduction to use-
ful life. *
The power of general superintend-
ence vests a plenary authority in the committee to arrange,
classify and distribute pupils, in such a manner as they
think best adapted to their general proficiency and welfare.
If it is thought expedient to provide for very young child-
ren, it may be that such schools may be kept exclusively
by female teachers, quite adequate to their instruction, and
yet whose services may be obtained at a cost much lower than
that of more highly qualified male instructors. So, if they
should judge it expedient to have a grade of schools for child-
ren from seven to ten, and another for those from ten to four-
teen, it would seem to be within their authority to establish
such schools. So, to separate male and female pupils into
different schools. It has been found necessary, that is to
say, highly expedient, at times, to establish special schools
for poor and neglected children, who have passed the age
of seven, and have become too old to attend the primary
school, and yet have not acquired the rudiments of learn-
ing to enable them to enter the ordinary schools. If a class

*

of youth, of one or both sexes, is found in that condition, and it is expedient to organize them into a separate school, to receive the special training adapted to their condition, it seems to be within the power of the superintending committee to provide for the organization of such special school. * In the absence of special legislation on this subject, the law has vested the power in the committee to regulate the system of distribution and classification; and when this power is reasonably exercised, without being abused or perverted by colorable pretences, the decision of the committee must be deemed conclusive. The committee, apparently upon great deliberation, have come to the conclusion that the good of both classes of schools will be best promoted by maintaining the separate primary schools for colored and for white children, and we can perceive no ground to doubt that this is the honest result of their experience and judgment. It is urged that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded on a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence; and we cannot say that their decision upon it is not founded on just grounds of reason and experience, and in the results of a discriminating and honest judgment."

We concur in these views, and they are decisive of the present controversy. In order to prevent possible misapprehension, however, we think proper to add that in our opinion, and as the result of the views here announced, the exclusion of colored children from schools where white children attend as pupils, cannot be supported, except under the conditions appearing in the present case; that is,

except where separate schools are actually maintained for the education of colored children; and that, unless such separate schools be in fact maintained, all children of the school district, whether white or colored, have an equal right to become pupils at any common school organized under the laws of the State, and have a right to registration and admission as pupils in the order of their registration, pursuant to the provisions of subdivision fourteen of section 1,617 of the Political Code.

Writ of mandamus denied.

MCKINSTRY, J., concurring specially:

I concur in the judgment on the ground first considered in the opinion of the Chief Justice.

Mr. Justice RHODES did not express an opinion.