Lead Opinion

The opinion of the court was delivered by

Valentine, J.:

This is an action of mandamus, brought by Leslie Tinnon, a colored boy of school age, by his next friend, Elijah Tinnon, to compel the board of education of the city of Ottawa, and William Wheeler, the principal of the public schools of said city, to admit the plaintiff to attend one of such public schools. A trial was had in the court be*16low by the court without a jury, and judgment was rendered in favor of the plaintiff and against the defendants, and a peremptory writ of mandamus was ordered; to all of which the defendants below excepted, and now bring the case to this court for review.

In the court below, the pleadings were so framed and admissions were so made thatthe only question presented to the court below for decision was, whether the board of education of a city of the second class has the power to establish separate schools for white and colored children, and to. exclude colored children from the schools established for white children for no other reason than that they are colored children. As before stated, the court below decided that the board of education has no such power. The statutes of this state having application to this question, read as follows:

“Sec. 2. In each city governed by this act there shall be established and maintained a system of free common schools, which shall be kept open not less than three nor more than ten months in any one year, and shall be free to all children residing in such city between the ages of five and twenty-one years. But the board of education may, where school-room accommodations are insufficient, exclude for the time being children between the ages of five and seven years.”

“Sec. 9. The board of education shall have power to elect their own officers, except the treasurer; to make their own rules and regulations, subject to the provisions of this article; to organize and maintain a system of graded schools; to establish a high school whenever in their opinion the educational interests of the city demand the same; and to exercise the sole control over the schools and school property of the city.”

These statutes were passed in 1876. (Laws of 1876, ch. 122, art. 11, §§ 2, 9; Comp. Laws of 1879, pp. 846, 847.)

For the purposes of this case we shall assume that the legislature has the power to authorize the board of education of any city or the officers of any school district to establish separate schools for the education of white and colored children, and to exclude the colored children from the white schools, notwithstanding the fourteenth amendment to the constitution of the United States; and there are- decisions in some of the *17states which sustain such authority. (The State v. McCann, 21 Ohio St. 198; Cory v. Carter, 48 Ind., 327; Ward v. Flood, 48 Cal. 36; Bertonneau v. The Directors of the City Schools, 3 Woods, 177.) But still this power of the legislature may be doubted. (Strauder v. West Virginia, 100 U. S., 303. See also Ex parte Virginia, 100 U. S. 339; Slaughter-House Cases, 16 Wall. 36; Neal v. State of Delaware, [U. S. Sup. Court, May 1881,] 23 Alb. L. J. 466; 12 Cent. L. J. 514.) The fourteenth amendment provides among other things, as follows:

“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or 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.”

In the case of Strauder v. West Virginia, 100 U. S., p.307, the court uses the following language:

“ It [the fourteenth amendment to the constitution of the United States] ordains that no state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States, (evidently referring to the newly-made citizens, who, being citizens of the United States, are declared to be also citizens of the state in which they reside.) It ordains that no state shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states; and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race — the right to exemption from unfriendly legislation against them distinctively as colored — exemption from legal discriminations, implying inferiority in civil society, lessen*18ing the security of their enjoyment of the rights which others enjoy, and discriminations which are steps toward reducing them to the condition of a subject race.”

The question whether the legislatures of states have the-power to pass laws making distinctions between white and colored citizens, and the extent of such power, if it exists, is a question which can finally be determined only by the supreme court of the United States; and hence we pass this question, and "proceed to the next, over which we have more complete jurisdiction.

Has the legislature of the state of Kansas given, or attempted to give, to the boards of education of cities of the second class, the power to establish separate schools for the education of white and colored children, and to exclude from the schools-established for white children all colored children, for no other reason than that they are colored children? Prima fade, this question should be answered in the negative. The tendency of the times is, and has been for several years, to abolish all distinctions on account of race, or color, or previous condition of servitude, and to make all persons absolutely equal before the law. Therefore, unless it appears clear beyond all question that the legislature intended to authorize such distinctions to be made, we should not hold that any such authority has-been given. And we certainly should not expect to find that the legislature had given any such authority during the centennial year of 1876, when the minds of all men were inclined to adopt the most cosmopolitan views of human rights, and not to adopt any narrow or contracted views founded merely upon race, or color, or clan, or kinship. It is true that in cities of the first class, which included up to within a year past only the city of Leavenworth, the power to make such distinctions existed. But this power has always existed in the city of Leavenworth, from its earliest territorial days down to the present time, and was given to that city at first as a mere matter of local concern, and at a time when the prevailing opinions of men were very different from the prevailing opinions of men at the present day. *19The first act passed by the state legislature giving such power to the city of Leavenworth, will be found in the Compiled Laws of 1862, pp. 395, 396, §§18, 19; and the power was then expressly given to such city, and was not left for mere inference or conjecture. See also Compiled Laws of 1879, p. 843, § 142. This last-mentioned act will now apply to two other cities, as well as to the city of Leavenworth, and the power is expressly given.

The tendency of the present age is not to make any distinctions with regard to school children, except to classify them with reference to their studies and place them in the classes in which they properly belong. All kinds of children are usually allowed to go to the same schools, and all kinds of children are usually placed in the same classes. Boys and girls are allowed to go not only to the same schools, but are also placed in the same classes, and even colleges are now opening their doors for the education of both sexes; and is it not better that this should be so? Is it not better for the grand aggregate of human society, as well as for individuals, that all children should mingle together and learn to know each other? At the common schools, where both sexes and all kinds of children mingle together, we have the great world in miniature; there they may learn human nature in all its phases, with all its emotions, passions and feelings, its loves and hates, its hopes and fears, its impulses and sensibilities; there they may learn the secret springs of human actions, and the attractions and repulsions, which lead with irresistible force to particular lines of conduct. But on the other hand, persons by isolation may become strangers even in their own country; and by being strangers, will be of but little benefit either to themselves or to society. As a rule, people cannot afford to be ignorant of the society which surrounds them; and as all kinds of people must live together in the same society, it would seem to be better that all should be taught in the same schools.

The supreme court of Iowa seems to have taken the same view of this subject that we have taken — that is, that unless *20the legislature has dearly conferred power upon the school boards to establish séparate schools for the education of white and colored children, no such power has been conferred. Under a statute which reads, “ in each sub-district there shall be taught one or more schools for the education of youth between the ages of five and twenty-one years,” the supreme court of Iowa held that the school board could not establish separate schools for the education of white and colored children, and could not exclude colored children from attending schools established for the white children alone. (Sec. 12, ch. 172, Laws of Iowa of 1862, as amended by § 3, ch. 143, Laws of Iowa of 1866; Clark v. The Board, &c., 24 Iowa, 266; Smith v. The Directors, &c., 40 Iowa, 518; Dove v. Independent School District, 41 Iowa, 639.)

Now we do not think that the legislature of Kansas has dearly conferred power upon the school boards of cities of the second class to establish separate schools for the education of white and colored children. We do not think that the legislature has even been silent upon the subject. But, by the clearest implication, if not in express terms, it has prohibited the boards from establishing any such schools. Said §§ 2 and 9 of the Laws of Kansas of 1876 provide for a system of free schools in cities of the second class, giving the board of education plenary power over them. The board can organize a system of graded schools, establish a high school, and exercise sole control over the schools and school property: provided always (under §2), that it “maintains a system of free common schools,” “free to all children residing in such city,” of proper ages. Now, if only one school out of all the schools of a city of the second class is free for colored children to attend, is that maintaining common schools, free to all the children of the city? In the case of Railroad Co. v. Brown, 17 Wall. 446, in which the supreme court of the United States construed an act of congress granting certain privileges to a railroad company, and also enacting that “ no person shall be excluded from the cars on account of color,” the court “held, that this meant that persons of color *21should travel in the same cars that white ones, did, and along with them in such cars; and that the enactment was not satisfied by the company’s providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively for white persons, and in fact the very cars which were, at certain times, assigned exclusively to white persons.” That is, under this decision, railroad cars are not free to a person who is excluded from all but one of them; and, on the same principle, schools are not free to a person who is excluded from all but one of them.

We suppose that the board of education of a city of the second class may grade the schools in such city, and then require that all children be placed in their proper grades. This is for the interest of education; and the statute expressly authorizes it. We also suppose that the board of education may divide the city territorially into districts, building school houses in each district, and may then require that children shall attend school only in their own district. This would also be in the interest of education. Generally such a thing would be founded upon convenience, and sometimes upon necessity. But the power to divide a city territorially into districts does not include or prove the power to divide the city according to race, color, nationality or descent. In the case of School District v. Aldrich, 13 N. H. 139, it is held that “a division of a town into school districts must be a territorial division, and not one merely by a designation of the inhabitants or householders.” And what good reason can exist for separating two children, living in the same house, equally intelligent, and equally advanced in their studies, and sending one, because he or she is black, to a school house in a remote part of the city, past several school houses nearer his or her home, while the other child is permitted, because he or she is white, to go to a school within the distance of a block ? No good reason can be given for such a thing, and the legislature has not authorized or attempted to authorize it to be done. It has been suggested that the board of educa*22tion may establish separate schools for males and females; and, therefore, that it may establish separate schools for white and colored children. Now the premise is not admitted, and the conclusion is a non sequitur. It is not admitted that the legislature has the power to authorize the board to establish separate schools for males and females, (Const., art. 2, § 23;) (nor is it admitted that the legislature has even attempted to po so; and besides, even if the legislature had the power to authorize schools for males and females, and had attempted to exercise it, still it would not even then follow that the board of education could establish separate schools for white and colored children. There are greater differences existing between males and females of the same race, and occupying the same condition in life, except as to sex, than there are between any two males, or any two females of different races, who reside in Kansas, and whose conditions are substantially equal, except as to race. This is recognized by the fact that male citizens of all races are allowed to vote, while no female citizen'of any race is allowed to vote. There are physiological differences, and differences in wants and needs, and modes of life, existing between males and females of the same race, which do not exist between males of different races, or females Ínf different races. Hence, the power to establish separate chools for males and females, even if it were admitted, would tot either include or prove the power to establish separatechools for children of different races; and especially it would not include or prove the power to establish separate schools for children of African descent. If the board has the power, because of race, to establish separate schools for children of [African descent, then the board has the power to establish separate schools for persons of Irish descent or German descent; and if it has the power, because of color, to establish separate schools for black children, then it has the power to establish separate schools for red-headed children and blondes. We do not think that the board has any such power. We have conceded, for the purposes of this case, *23that the legislature has the authority to confer such power upon school boards; but in our opinion the legislature has not exercised or attempted to exercise any such authority.

This decision is not in conflict with any decision that we •are aware of; but it is supported by the decisions in Iowa. The decisions referred to by the counsel for plaintiffs in error, defendants below, are either all very old, and rendered before the war, or are founded upon statutes expressly authorizing separate schools for white and colored children; while in this state, our statutes have been recently enacted, and as we construe them they do not authorize the establishment of any such separate schools; and hence, the decisions referred to by counsel have no application to this case. It must be remembered that unless some statute can be found authorizing the establishment of separate schools for colored children, that no such authority exists; and we have been unable .to find any such statute, and none has been pointed out to us.

The judgment of the court below, we think is correct, and therefore it will be affirmed.

Horton, C. J., concurring.

Dissenting Opinion

Brewer, J.,

dissenting: I am unable to concur with my associates in the opinion filed in this case, and will state briefly the grounds of my dissent.

The arguments advanced by my brother Valentine seem to me more properly arguments for the consideration of the legislature, as to the wisdom and policy of school legislation, than as correctly expounding the legislation which already exists. The question is, not whether white and colored children ought to be educated together, but what power of classification and control has been given by the legislature to boards of education, in cities of the second class.

I dissent entirely from the suggestion that under the fourteenth amendment of the federal constitution, the state has no power to provide for separate schools for white and colored children. I think, notwithstanding such amendment, each state has the power to classify the school children by color, *24sex, or otherwise, as to its legislature shall seem wisest and best. And to that view I think the general current of authority, both in state and federal courts, tends.

Believing that the single question is one of the power granted, I turn to the statutes to ascertain the extent of that power. Section 158, chapter 92, Compiled Laws of 1879, provides that the board of education shall exercise sole control' over the schools and school property of the city. If this stood alone, there could be but little doubt of its full power of classification; but section 151 provides that there shall be' established and maintained a system of free common schools, “ which shall be free to all children residing in such city.57' There is also given authority to establish graded schools. From these provisions it is argued that the limit of classification is scholarship. Graded schools may be established, but when established any scholar of any grade is free to attend any school of that grade in the city. Any classification by color is said to be a trespass on the freedom of the schools. It does not seem to me that the opinion of the majority of the court is consistent with itself; it concedes that the board of education may divide the city, territorially, into districts, and require the children in one district to attend the schools of that district, and it suggests that possibly a classification by sex might be allowed; but no section of the statute is pointed out which recognizes any such classification.

If classification by color is prohibited by that clause which says that all schools shall be free to all children residing in such city, I cannot see why classification by sex, as well as by district, is not equally prohibited. Classification by district may be more reasonable and in the interest of education, while classification by color may be unreasonable and deserve condemnation ; but the question before us is not one of policy,, but one of power. And when the legislature provides that schools shall be free to all children of the city, it means that each child shall select for itself what school, anywhere in the-city, of its grade of scholarship, it shall attend; or else that the board of education, in the exercise of its sole control, *25may classify the scholars by territory, sex, or color, as it shall deem wisest and best, providing only that to each child is secured equal school advantages. The latter, I think, is the true construction. The constitution, art. 2, § 23, reads: “ The legislature, in providing for the formation and regulation of schools, shall make no distinction between the rights of males and females.” I have never understood and do not yet understand that that section compels coeducation of the sexes. All I understand that to mean is, that equal advantages be secured to the boys and to the girls, leaving the matter of the separate or coeducation to be settled by the wisdom of the legislature. In like manner I think free schools mean equal school advantages to every child, leaving questions of classification by territory, sex, or color, to be determined by the wisdom of the local authorities. For instance, I do not think a child in North Lawrence can insist upon going to a school in South Lawrence simply because it dislikes the teacher in North Lawrence; I think the board of education in the city of Lawrence has the power to limit its attendance to the schools of North Lawrence, notwithstanding the guaranty of the freedom of the public schools. I think likewise, that a girl in Lawrence has not the right to demand admission to a school in that city attended by boys only, when a school of like advantages and attended by girls only is, by order of the board of education, open to her. The same rule also, in my judgment, controls in reference to color as to sex, or territory. Freedom of the schools means, that the schools as a whole shall be free, and not that each school shall be free to everybody. Suppose the children all wanted to go to one school, and the parents all joined in that desire: can they overflow the one room and leave the other rooms vacant? Has the board no control ? Can it compel no classification ? And if it has the right to classify, whose judgment controls as to such classification, that of the board of education elected by the community, or that of the courts ? I think the former.

I see no half-way place; under the power of sole control the board of education has the power to classify, as to it shall *26seem best, so far as is not in terms prohibited; or else under the provision for freedom of schools each child may determine for itself what school of its grade of scholarship in the city it will attend, irrespective of any question of territory, sex, or color. Believing the former the true interpretation of the statute, I am compelled to dissent from the opinion of the court. In this connection I may also refer to the dissenting opinion of Mr. Justice Wright, ofthe supreme court of Iowa, 24 Iowa, 266, as expressing my views.