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CORY ET AL. v. CARTER.
(48 Indiana 327 (1874))

CONSTITUTIONAL LAW.-Schools.-Education of Colored Children.-Separate Schools.-The act of May 13th, 1869 (3 Ind. Stat. 472), entitled "an act to render taxation for common school purposes uniform, and to provide for the education of the colored children of the State," provides that a school tax shall be levied, without regard to the race or color of the owner of the property taxed; that all children, without regard to race or color, shall be included in the enumeration for school purposes, the colored children to be enumerated in separate lists from those in which the other school children are cnumerated, and to be organized into separate schools, having all the rights and privileges of other schools; and if there be not a sufficient number of colored children, within attending distance, to form a separate school for each district, it is provided, that the trustees may consolidate several districts into one; or if there be not a sufficient number of colored children within reasonable distance to thus consolidate, the trustees shall provide such other means of education for colored children as shall use their proportion, according to number, of school revenue to the best advantage.

Held, in a suit by a negro father for a mandate to compel the admission of his children into a school for white children, that this statute is not in conflict with section 19 of article 4 of the state constitution, which provides, that every act shall "embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title." Held, also, that the statute is not in conflict with section 23 of article 1 of the state constitution, which declares, that "the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens." Held, also, that said statute is not in conflict with section 1 of article 8 of the state constitution, which makes it the duty of the General Assembly "to provide by law for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all."

Held, also, that said statute is not in conflict with section 2 of article 4 of the Constitution of the United States, which declares, that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

Held, also, that said statute is not in conflict with the thirteenth or fourteenth amendment of the Constitution of the United States, or with earlier amendments, or with the act of Congress of April 9th, 1866, known as the "Civil Rights Bill." SAME.—Thirteenth Amendment of Constitution of United States.-The thirteenth amendment abolished slavery within the limits of the United States. SAME.-Fourteenth Amendment.-First Clause.-The first clause of the fourteenth amendment made negroes citizens of the United States, and citi

sens of the State in which they reside, and thereby created two classes of citizens, one of the United States and the other of the state. SAME-Second Clause.-The second clause of said amendment prohibits the states from abridging the privileges and immunities of citizens of the United states. This clause places the privileges and immunities of citizens of the United States under the protection of the Federal Constitution, and leaves the privileges and immunities of citizens of a state under the protection of the constitution and laws of the state. The second clause simply contains an inhibition of power to the states, and does not confer upon the Federal Government power to protect or enforce, by legislation, the privileges and immunities of citizens of a state.

SAME-Third and Fourth Clauses.-The third and fourth clauses of the fourteenth amendment only prohibit the states from doing acts which they were prohibited from doing by other clauses of the Federal Constitution.. SAME.-Thirteenth, Fourteenth, and Fifteenth Amendments-Limitation of Power of State.-The thirteenth, fourteenth, and fifteenth amendments to the Federal Constitution impose the following limitations and restrictions upon the sovereign power of the State of Indiana: 1. The State cannot in the future, while a member of the Federal Union, change her constitution so as to create or establish slavery or involuntary servitude, except as a punishment for crimes whereof the party shall have been convicted. 2. The State cannot deny to a citizen of the United States or deprive him of those national rights, privileges, and immunities which belong to him as such citizen. 3. The State must recognize as its citizens any citizen of the United States who is or becomes a bona fide resident therein. 4. The State must give to each citizen of the United States, who is or becomes a bona fide citizen therein, the same rights, privileges, and immunities secured by her constitution and laws to her white citi

zens.

SAME.-Common Schools.-The system of common schools in this State has its origin in, and is provided for by, the constitution and laws of this State. It is purely a domestic institution, and subject to the exclusive control of the constituted authorities of the State. The Federal Constitution does not provide for any general system of education to be conducted and controlled by the National Government, nor does it vest in Congress any power to exercise a general or special supervision over the states on the subject of education.

SAME.-Uniformity of Schools-Under our constitution, our common school system must be general, uniform, and equally open to all, but uniformity will be secured when all the schools of the same grade have the same system of government and discipline, the same branches of learning taught, and the same qualifications for admission.

SAME.-The legislature, under our state constitution, as it existed without the limitations imposed upon the sovereign power of the State by the fourteenth amendment, had the power to provide for the education of only

the white children of the State; but since its ratification no system of public schools would be general, uniform, and equally open to all, which did not provide for the education of the colored children of the State.

SAME.-The classification of scholars, on the basis of race or color, and their education in separate schools involve questions of domestic policy which are within the legislative discretion and control, and do not amount to an exclusion of either class. SAME.-Power of Courts.-The legislature has not provided for the admission of colored children into the same schools with the white children, in any contingency; and even if the fourteenth amendment absolutely required their admission, the courts cannot, in the absence of legislative authority, confer that right upon them.

SAME-The legislature has the power to provide for either separate or mixed schools, but it having failed to provide for mixed schools, the courts must execute the law as it comes from the law-making department of the government. If the act of May 13th, 1869, should be held unconstitutional and void, there would then be no law providing for the enumeration and education of the colored children of the State, and they would be left without any provision whatever for their education. SAME.-Construction of Statute.-There being no averment that the trustee had failed to provide for the education of the children of the plaintiff outside of the schools for the white children, no question arose as to what would be a compliance with such provision of the statute.

From the Marion Superior Court.

N. B. Taylor, F. Rand, and E. Taylor, for appellants.

J. W. Gordon, T. M. Browne, and R. N. Lamb, for appellee.

BUSKIRK, J.—This was a proceeding by mandate, on the part of the appellee against the appellants. The appellee, in his petition, alleged that he was a citizen of the State of Indiana and resided in school district number two, in Lawrence township, Marion county, in the said State, and was a taxpayer therein; that he was the father of two children, Mary and Edward Carter, and the grandfather of Lucy and John Carter, all of whom resided with him; that he was a negro of African descent, and that his said children and grandchildren were all negroes of the full blood and of the same descent; that his children and grandchildren were respectively of the age that entitled them to the benefits of the common schools in the said district; that there was a common school for white

children in progress in said district, and that his said children and grandchildren presented themselves at the school-house in said district and demanded admission and to be taught therein with the white children, but were refused admittance by the appellants Beaver and Craig, the director and teacher of said school, for the reason that the said school was a school for white children, and not for negro children; that after the refusal aforesaid, he caused to be served upon the appellants a written request and demand that his said children and grandchildren should be received and taught in the said school with the white children of said district, but they were refused admission solely upon the ground that they were negroes; that said appellants and all other persons have wholly neglected, failed, and refused, and still neglect, fail, and refuse, to provide any school in said district, or in any adjoining district, near enough for said children or grandchildren to attend as scholars; and that by reason of the premises his said children and grandchildren are denied all opportunity to attend any school in said district or elsewhere in the neighborhood, as in right and law they are entitled to do.

There is no allegation that the trustee of said school district number two had failed or refused to provide the means of education for such children within the district, outside of the said school for white children, to the extent of their proportion, according to number, of the school revenues of the said district.

The aid of the court was requested to declare the right of admission of said negro children into the school for white children, and to compel the appellants to admit them.

An alternate writ was issued against the appellants, requiring them to admit such children into the school in said district for white children or appear and show cause why they should not so admit such children.

The appellants appeared and filed separate demurrers to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, but the demurrers were overruled; and the appellants refusing to plead further, but elect

ing to stand by their exceptions to the rulings of the court, the court gave judgment for a peremptory writ of mandate.

The appellants appealed to the general term, where the judgment of the special term was affirmed.

The error assigned is, that the superior court, in general term, erred in affirming the judgment of the court in special

term.

The question presented for our decision is, whether the court below erred in overruling the demurrer to the complaint, the correct solution of which will depend upon the proper construction to be placed upon the constitution and statutes of this State and the Constitution of the United States; and as preliminary to the consideration of the grave constitutional questions arising in the record, we proceed to inquire what provisions the legislature has made for the education of the white and colored children of the State.

The act of March 6th, 1865, provided for the annual assessment and collection of a tax on the property, real and personal, in the State (except that owned by negroes and mulattoes), for supporting a general system of common schools in the State. It provided for the enumeration each year of the white children within the respective townships, towns, and cities in the State, between the ages of six and twenty-one years, exclusive of married persons. It provided the officers and agencies for the system, the mode and means of carrying it on, for locating and establishing schools, and carrying them on, for building school-houses, and employing teachers, etc. It was essentially white-none but white children between the named ages, and who were unmarried, were entitled to its privileges. 3 Ind. Stat. 440-472; Draper v. Cambridge, 20 Ind. 268.

At the session of the legislature of this State next after the ratification of the fourteenth amendment to the Constitution of the United States, an act was passed by the General Assembly of this State, entitled “an act to render taxation for common school purposes uniform, and to provide for the education

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