colored school or white school at his election. In regard to him there are no words of prohibition as in the case of the Indian, and, except for those words of prohibition, it was the evident understanding of the legislature, an Indian could attend either. The white school remained free to the colored pupil, but was closed against the Indian, except by permission of the superintendent of public instruction.

And so with the legislation under review by the Supreme Court in Dallas v. Fosdick (supra). The language in terms excludes colored children. Such language is not to be found within the limits of the statutes relating to Brooklyn. But we have now the act of 1873 (Chap. 186 already cited), which permits no doubt as to the present absolute right of each child not disqualified by some mental or moral defect, to attend the common school established in the district where he resides. Previous limitation on account of color, if any existed, necessarily ceased with the enactment of this act (1873, supra). Nor did the subsequent statute of June, 1873 (Chap. 863), amending the charter of Brooklyn, or the act (Chap. 420) of the same year, relating to the board of education, have the effect to repeal as to that city the Civil Rights Act already cited (Chap. 186, Laws of 1873). An express repeal is not pretended, and there is nothing in the act from which a repeal can be implied. The two acts have different objects; the first (that of April, 1873, supra) is defined by its title and was aimed at the proection of the citizen, while the other (that of June, chaps. 420, 603) as part of the general charter of the city, created a department of public instruction, to be under the control of a board of education, to which it declares "all the provisions of aw relating to the present board of education shall apply,' nd if I am right in the foregoing discussion, then among thers, the provisions of the act just before passed (Chap. 186). It is not long since the inferiority of the colored man was eceived by a great majority of the white race as a general lict of nature, and upon it as a fundamental principle laws ere passed, and regulations, usage and custom founded. In eference to it, and the general sentiment of antipathy to the

negro race, "colored schools" were authorized by the statutes referred to, and then certain schools before free to all were open only to the white citizen. By the act of 1873 (Chap. 186) the "word or term" which was thought to permit this discrimination was annulled, and thenceforward it became impossible Neither the wisdom nor justice of this course of legislation is now in question, nor are we to inquire whether co-education of the races is desirable, or more or less likely than the separate system to promote the welfare of either, but it cannot, I think, be doubted that the latter, when enforced by law against the wish of the colored race, is directly calculated to keep alive the prejudice against color from which sprung many of the evils for the suppression of which the fourteenth amendment and our own civil rights statute were enacted.

We find, however, in the opinion of the learned judge who disposed of this case at Special Term, a suggestion that the discrimination was in favor of the colored child. That question may well be left to the child itself. The statute should not be construed as prohibiting such intercourse or association. For any regulation by which the black is kept in a state of separation is in fact one of exclusion and reflects the sentiment by which the white assumed to be the superior race, a discrimination against which the law is now directly aimed. In regard to schools the question can arise but seldom. In most of the counties and cities of this State no provision is made for the separate education of colored children. In a few counties, and in the city of New York as well as Brooklyn, such accommodations are provided. But when they are not confined to those schools and excluded from others, the attendance at them has steadily decreased, as we learn from the reports of the board of education of the city of New York, made under the direction of the legislature (Laws of 1851, chap. 386, § 3, subd. 10), and that this diminished attendance is due to the fact that all its public schools are now open to pupils without distinction of race or color, and "that many parents and guardians of colored children have, therefore, availed themselves of the privilege in

the matter of selection of schools." (See reports of 1881 and 1882.)

From the report of 1880, made by the board of education of the city of Buffalo, we find the same condition exists in that city. Colored children now attend the other schools with such unanimity that the superintendent recommends, that by legislative interference, the compulsory part of the law be repealed and the city no longer required to provide separate schools for children who cannot be compelled to resort to them.

In the case before us the city is under no obligation to maintain a separate school for children of color. But the objection is not to its existence; the objection is that the relator is compelled to attend it because of her color, and so is excluded from schools to which children of another race are permitted to resort. The exaction is, therefore, unequal, and is, I think, in violation of the law which gives to all children, within the everal districts, an equal right, in like cases and under like circumstances, to go to those schools for education. I am, thereFore, led to the conclusion that the relator, on account of her color, has been prevented, by a public officer and by ordinance or regulation, from enjoying an accommodation or privilege to which, as a citizen of this State, she is entitled. In such a case he court has no discretion to exercise, for the writ of manlamus affords the only adequate remedy, and it should have een granted. (People, ex rel. Gas-light Co., v. Common Council of Syracuse, 78 N. Y. 56.)

The orders of the Special and General Terms should, thereore, be reversed, and a writ issued, pursuant to the prayer of he petitioner.

RAPALLO, MILLER and EARL., JJ., concur with RUGER, Ch. J., 'INCH, J., concurs with DANFORTH, J.; ANDREWS, J., absent. Orders affirmed.

[This case was pending until the January Term, 1885, upon a petition for an extension of the opinion; hence, its publication with the opinions of that term.]

CASE 8-PETITION EQUITY-MAY 27, 1884.

Dawson v. Lee.

Lee v. Hill.

(83 Kentucky 49 (1885)

APPEALS FROM BULLITT CIRCUIT COURT.

1. CONSTITUTIONAL Law-DISCRIMINATION AGAINST NEGROES-TAXATION.-All legislation which discriminates against any particular race or class of persons is in violation of the Constitution of the United States. Therefore, State taxation for purposes of education should be provided for by general laws, applicable to all classes and races alike, all the children of the State being entitled to an equal share of the proceeds of the "Common School Fund," and of all State taxation for purposes of education.

An act, entitled "An act to establish a uniform system of common schools for the colored children of this Commonwealth," approved February 23, 1874, is unconstitutional, because, by implication, it excludes the negro children of the State from any share of the proceeds of the "Common School Fund" set apart by the Constitution, as well as from the annual tax levied on the property of white persons for school purposes.

2. SURETIES-SIGNING OF NAME BY AGENT.-Where the name of a person is signed as surety by an agent, he is not bound thereby unless the agent's authority was in writing signed by him. A writing signed by another for the person to be bound is not a sufficient authority.

8. PAYMENT BY SURETY NOT BOUND.-Where one pays a debt for which he supposes himself to be bound as surety, when in fact he was under no legal obligation to pay, he occupies no better attitude than a mere stranger or volunteer, and can not be substituted to the creditor's rights against the principal or the principal's vendee.

4. SHERIFF-LIEN OF SURETIES-RIGHTS OF VENDEE. Where the sureties of a sheriff claim a lien, by substitution to the rights of the Commonwealth, upon land which the sheriff has conveyed to another, the sheriff's vendee is entitled to share pro rata with the sureties in the proceeds of the land, to the extent that the amount paid by him upon the purchase price was paid by the sheriff upon the revenue for which the sureties were bound; but he is not entitled to priority, the lien of the Commonwealth existing when he made the payment.

5. PURCHASER FROM DEFAULTING SHERIFF-IMPROVEMENTS.—Where one purchases land from a defaulting sheriff, and in good faith makes necessary improvements, without notice that his vendor has defaulted, he is entitled, as against the sheriff's sureties claiming a lien upon the land by substitution to the rights of the Commonwealth, to be re-imbursed out of the proceeds of sale to the extent that the improvements are shown to have increased the vendible value of the land.

6. SHERIFF-TAXES COLLECTED UNDER VOID ACT.-The Commonwealth is not entitled to money collected by the sheriff, as taxes under a void statute, and, therefore, has no lien therefor to which the sureties of the sheriff can be substituted.

R. MCCONATHY FOR Appellant.

Brief not in record.

F. P. STRAUS FOR APPELLEE.

Brief not in record.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

This is an action by appellant Dawson and appellees Hill and Greenwell, to subject a tract of land owned by J. A. Lee to the payment of $, one-third of which they each, as alleged sureties in a revenue bond given by J. H. Hays, sheriff of Bullitt county, paid into the Treasury of the State.

Upon final hearing, personal judgment was rendered