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of the colored children of the State," which was approved May 13th, 1869, and is as follows:
"Section 1. Be it enacted by the General Assembly of the State of Indiana, that in assessing and collecting taxes for school purposes under existing laws, all property, real and personal, subject to taxation for State and county purposes, shall be taxed for the support of common schools without regard to the race or color of the owner of the property.
"Sec. 2. All children of the proper age, without regard to the race or color, shall hereafter be included in the enumeration of the children of the respective school districts, townships, towns and cities of this State for school purposes; but in making such enumeration the officers charged by law with that duty shall enumerate the colored children of proper age, who may reside in any school district, in a separate and distinct list from that in which the other school children of such school district shall be enumerated.
"Sec. 3. The trustee or trustees of each township, town or city, shall organize the colored children into separate schools, having all the rights and privileges of other schools of the township: Provided, there are not a sufficient number within attending distance, the several districts may be consolidated and form one district. But if there are not a sufficient number within reasonable distance to be thus consolidated, the trustee or trustees shall provide such other means of education for said children as shall use their proportion, according to numbers, of school revenue to the best advantage.
"Sec. 4. All laws relative to school matters, not inconsistent with this act, shall be deemed applicable to colored schools.
"Sec. 5. Whereas an emergency exists for the immediate taking effect of this act, the same shall be in force from and after its passage." 3 Ind. Stat. 472.
Prior to the passage of such act, the assessment of taxes for school purposes had been confined to the property of white persons. The first section provided for the levy and collection
of a tax for school purposes upon all the property within the State subject to taxation, without regard to the race or color of the owner.
The second section adds to the enumeration directed in Bection 14 of the act of March 6th, 1865, all colored children of the proper age, within the State, and directs them to be enumerated at the same time with the white children, but in a separate list or class from that in which the white children are enumerated.
The third section commands the trustees of each township, town, or city in the State to organize the colored children therein into separate schools, with all the rights and privileges of white schools in the particular township, town, or city. But if the number of colored children within attending distance are not sufficient to organize a school, the trustees may consolidate several districts into one, for that purpose. And if the number of colored children within reasonable attending distance are not sufficient to be thus consolidated, the trustees shall provide such other means of education for such colored children as shall use their proportion, according to numbers, of the school revenue to the best advantage.
The fourth section makes all laws relative to school matters, not inconsistent with the provisions of the act, applicable to colored schools.
It is, in the first place, claimed that the act of May 13th, 1869, is in conflict with section 19 of article 4 of our constitution, which provides, that every act shall " embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title."
We think the subject of the act is common schools, and that the taxation of the property of all persons for school purposes and the enumeration of, and providing schools for, the colored children of the State are properly connected with the subject of the act. We have so frequently placed a construction upon the above quoted section that we do not deem it necessary to re-examine the question. We cite the late case of The State,
ex rel. Pitman, v. Tucker, 46 Ind. 355, where many of the cases are cited.
It is very plain and obvious to us, that by the supplemental act of May 13th, 1869, the legislature has provided for the education of the white and colored children of the State in separate schools, and the question presented for our decision is, whether such legislation is in conflict with the constitution of this State or the Constitution of the United States.
It is contended that the act in question is repugnant to section 23 of article 1, and section 1 of article 8, and they are: "Section 23. 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." 1 G. & H. 33.
Section 1, article 8 (1 G. & H. 48), declares, that "knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government, it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide by law for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all."
It is important that we should settle in advance the rules by which we are to be guided in placing a construction upon the constitutional provisions above quoted.
In The State v. Gibson, 36 Ind. 389, we held that it was settled by very high authority, that, in placing a construction upon a written constitution or any clause or part thereof, a court should look to the history of the times, and examine the state of things existing when the constitution, or any part thereof, was framed and adopted, to ascertain the old law, the mischief, and the remedy. The court should also look to the nature and objects of the particular powers, duties, and rights in question, with all the aids and lights of cotemporary history, and give to the words of each provision just such operation and force, consistent with their legitimate meaning, as will fairly secure the end proposed. Kendall v. The United
States, 12 Peters, 524; Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 539.
In the Slaughter-House Cases, 16 Wallace, 36, the same rules were laid down and illustrated with great force by reference to the history of the times and condition of things which brought about the recent amendments to the Constitution of the United States.
Judge COOLEY, in his great work on Constitutional Limitations, on page 54, says:
"A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable. A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the principles of the common law. Those beneficent maxims of the common law which guard person and property have grown and expanded until they mean vastly more to us than they did to our ancestors, and are more minute, particular, and pervading in their protections; and we may confidently look forward in the future to still further modifications in the direction of improvement. Public sentiment and action effect such changes, and the courts recognize them; but a court or legislature which should allow a change in public sentiment to influence it in giving construction to a written constitution not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty; and if its course could become a precedent, these instruments would be of little avail. The violence of public passion is quite as
likely to be in the direction of oppression as in any other; and the necessity for bills of rights in our fundamental laws lies mainly in the danger that the legislature will be influenced by temporary excitements and passions among the people to adopt oppressive enactments. What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it."
Again, the learned author says:
"The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced."
Another cardinal rule of construction laid down by this author is, that the whole instrument is to be examined in placing a construction upon any portion or clause thereof. He says:
"Nor is it lightly to be inferred that any portion of a written law is so ambiguous as to require extrinsic aid in its construction. Every such instrument is adopted as a whole, and a clause which, standing by itself, might seem of doubtful import, may yet be made plain by comparison with other clauses or portions of the same law. It is therefore a rule of construction, that the whole is to be examined with a view to arriving at the true intention of each part; and this Sir Edward Coke regards the most natural and genuine method of expounding a statute. 'If any section [of a law] be intricate, obscure, or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of another.' And in making this comparison it is not to be supposed that any words have been employed without occasion, or without intent that they should have effect as part of the law. The rule applicable here is, that effect is to be given, if possible, to the whole instrument, and to every sec
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