137 P. 217 | Or. | 1913
delivered the opinion of the court.
The petitioner and his wife are of half Indian blood, ■ and their children are half Indians also. The petitioner is a native of Yreka, California, and his wife is a native of Klamath Falls, in this state, and both the petitioner and his wife, and also their children, are citizens of the United States and of this state, and residents of Klamath County. The fathers of the petitioner and of his wife were white men and their mothers were Indian women. The petitioner and his wife and their children are, and for some time prior to the commencement of this proceeding were, residents and inhabitants of school district No. 7, of Klamath County, and the petitioner was and is a taxpayer in said school district. The petitioner and his wife and.their children live separate from any' Indian tribe. The petitioner and his wife have five children, and two of these children are Juanita Crawford, aged 9 years, and Naoma Crawford, aged 8 years. The petitioner and his wife and each of their children hold completed allotments of and patents for land on the Klamath Indian Reservation, but they do not live on said reservation. The petitioner, his wife, and his children, have voluntarily adopted the customs, usages and habits of civilized life. The petitioner’s said two children attended the public schools of said school district for two years prior to September 27, 1912, and received instructions therein the same as other children did. The amended alternative writ of mandamus sets forth facts showing that the petitioner’s two said children were in all respects entitled to be admitted to attend the public schools of said school district, and to receive instructions therein free of charge, under Section 4052, subdivision 18, L. O. L., unless their being of half Indian blood disqualified them to attend
The court below is a court of general jurisdiction, and the statute expressly confers jurisdiction upon Circuit Courts to grant writs of mandamus: Section 614, L. O: L. The court below had jurisdiction of the persons of the defendant and of the subject matter of the proceeding.
The petitioner, as father of his children, has the right to maintain this proceeding to compel the school board to permit his minor children to attend the public schools and to be instructed therein, according to law: High, Extraordinary Legal Remedies (3 ed.), § 438.
In Sutherland, Pleading, Section 273, the author says:
“This phrase means too few — not too many. When it appears upon the face of the complaint that the presence of other parties is necessary to a complete determination of the controversy, a demurrer will lie for a defect of parties, plaintiff or defendant. ’ ’
Speaking upon this subject, Sutherland, in Section 276, Volume 1, of his work on Pleading, says:
“A demurrer under this subdivision, following the words of the code, that there is a defect of parties defendant is insufficient for not specifying the particular defect. It must show who are the proper parties from the facts stated in the bill, not indeed by name, for that might be impossible, but in such a manner as to*393 point ont to tlie plaintiff the objection to his bill, and to enable him to amend by making proper parties.”
Bliss, in his work on Code Pleading (3 ed.), Section 411, inter alia, says:
“The defect of .parties for which a demurrer is allowed is a deficiency, not an excess of parties. * * A demurrer for this cause will not lie unless it affirmatively appears by the pleading demurred to that the person who should have been made a party is living at the time the action is commenced; if it does not so appear, the objection must be taken by answer, and, in either case, the names of the omitted parties must be given. ’ ’
The demurrers do not point out any person who should have been made a defendant, and hence they raise no question for determination on that point.
In Elliott v. Oliver, 22 Or. 45, 46 (29 Pac. 2), the court says:
“Tbe facts stated in tbe writ should be tbe same facts stated in tbe petition for tbe writ, as no resort or reference can be bad to tbe petition in aid of tbe writ. ’ ’
In McLeod v. Scott, 21 Or. 111, 112 (29 Pac. 1), tbe court says:
‘ ‘ Tbe petition is no part of the pleadings. # * This being so, tbe writ must be sufficient in itself to show what is claimed and tbe facts upon which tbe claim is made. It stands for tbe complaint and may be demurred to or answered in the same manner as a complaint in an action. * * That tbe writ is wanting in*395 material allegations to support the proceeding is not questioned; and, upon reconsideration, we do not think it can be aided by reference to the facts in the petition.”
In Shively v. Pennoyer, 27 Or. 34 (39 Pac. 397), the court says:
“The alternative writ is deemed the complaint in mandamus proceedings, and by it their sufficiency must be tested, and not by the petition. ”
In 1849 the Supreme Court of Massachusetts, in the case of Roberts v. City of Boston, 59 Mass. (5 Cush.) 198, held that the general school committee of Boston had power, under the Constitution and laws of the commonwealth, “to make provision for the instruction of colored children, in separate schools, established expressly for them, and to prohibit their attendance upon the other schools, without there being any express authority for doing so in the statutes of Massachusetts at that time. Our attention has not been called to any other case holding that school boards can establish separate schools for colored children and exclude them from schools intended for white children when not expressly authorized by statute to do so.
In 1868, the fourteenth amendment to the Constitution of the United States took effect. This section of the amendment is as follows:
“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.”
Commenting on said amendment, the Supreme Court of the United States in Strauder v. West Virginia, 100 U. S. 307 (25 L. Ed. 664), says inter alia:
“It [the fourteenth amendment] ordains that no state shall make or enforce any laws which abridge the privileges or immunities of citizens of the United States. * * 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*397 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 state, 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, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps toward reducing them to a subject race.”
The states may enact laws providing for the establishment of separate schools for colored children, whether black or red, but such schools must be equal in equipment and efficiency to the schools provided for white children; but in this state we have no statute expressly providing for the establishment of separate schools for colored children.
Section 4052, subdivision 18, L. O. L., specifying the duties of school boards, says:
“They shall admit free of charge to the schools of their districts all persons between the ages of 6 and 21 residing therein, and all other persons may be admitted on such terms as the district may direct.”
It is the imperative duty of all school boards of bur public school system to admit to the schools within their districts all children residing therein, between the ages of 6 and 21, without discrimination as to color or race. When the state legislature has not passed an act expressly authorizing them to do so, school boards,
In the case of Board of Education v. Tinnon, 26 Kan. 18, the Supreme Court holds that the board of education had no power to establish separate schools for colored children, and inter alia, says:
“Has the legislature of Kansas given, or attempted to give, to boards of education in 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 facie, the 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 authorise such distinctions to be made, we should not hold that any such authority has been given.”
In Clark v. Board of Directors, 24 Iowa, 276, 277, the court says: .
“Our statute has expressed the sovereign will, that all the youths of the state between the ages of 5 and 21 years shall be entitled to the privileges and benefits of our common schools, and it is not competent for the board of directors to resist that sovereign will and declare that, since 'public sentiment in their district is opposed to intermingling of white and colored children in the same school, ’ they will deny equal privileges to some of these youths. In other words, all the youths are equal before the law, and there is no discretion vested in the board of directors, or elsewhere, to interfere with or disturb that equality. The board of directors may exercise a uniform discretion equally*399 operative upon all, as to the residence, or qualification, or freedom from' contagious disease, or the like, of children, to entitle them to admission to each particular school,- but the board cannot, in their discretion or otherwise, deny a youth admission to any particular school because of his or her nationality, religion, color, clothing, or the like.”
The court held in that ease that the board could not establish a separate school and compel colored children to attend it.
In the later case of Dove v. Independent School District, 41 Iowa, 689, the court approved the last preceding case, and the syllabus of the case is as follows:
“A pupil cannot legally be excluded from the public schools on account of color or descent, nor can he be compelled, if colored,- to attend a separate school for colored children.”
At one time California had a statute requiring the establishment of separate schools for children of African descent and for Indian children, and this law was sustained in Ward v. Flood, 48 Cal. 37 (17 Am. Rep. 405). Later the legislature revised its school laws and omitted the provision requiring separate schools for colored children, and the case of Wysinger v. Crookshank, 82 Cal. 588 (23 Pac. 54), arose under the latter law. The syllabus of the latter case is as follows:
“Subsequent to the act of April 7, 1880, repealing Sections 1669-1671 of the Political Code, and under the existing laws touching the education of children in the public schools, it has not been, and is not now, within the power of boards of education or school trustees to establish public schools exclusively for children of African descent, or to exclude them from the public schools established for white children.”
1 ‘ Whether the fourteenth amendment would prohibit school directors or boards of education from excluding colored children from public schools by the adoption and enforcement of such rules as have been adopted in this case (separate schools being provided for the colored children) is a question which we do not deem it necessary to determine here. We base our decision on the Constitution and laws of the state. * * Under our law, aside from the fourteenth amendment, directors of schools and boards of education, like defendants in error, have no discretion to deny a pupil of the proper age admission to the public schools on account of nationality, color or religion. * * Whether our Constitution and the acts of the legislature passed in pursuance of it, which place all children, regardless of color, upon a perfect equality so far as admission into the public schools is concerned, are to be regarded as wise or unwise legislation is a matter with which the courts have no concern. We are bound to declare the law as we find it written, and if it is not satisfactory to any section of the state, the remedy is in the legislative department of the government and there alone. ’ ’
In the case of Knox v. Board of Education, 45 Kan. 152 (25 Pac. 616, 11 L. R. A. 830), the syllabus of the case is as follows:
“Until the legislature clearly confers power upon boards of education of cities of the second class to establish separate schools for the education of white and colored children, no such power exists.”
“The power to establish and maintain separate schools for colored children was conferred on boards of education by Section 4008, and not by Section 4013 of the Revised Statutes, * * and Section '4008 having-been repealed by the act of the General Assembly passed February 22, 1887, * * separate schools for colored children have been abolished, and no regulation can be made under Section 4013 that does not apply to all children irrespective of race or color.”
In People v. Board of Education, 18 Mich. 409, Mr. Chief Justice Cooley says:
“Such being the division of the state into school districts, the legislature of 1867 passed an act amendatory of the primary school law, one section of which is as follows: ‘All residents of any school district shall have an equal right to attend any school therein: Provided that this act shall not prevent the grading of schools according to the intellectual progress of the pupils, to be taught in separate places, when deemed expedient. * * ’ It cannot be seriously urged that with this provision in force, the school board of any district which is subject to it may make regulations which would exclude any resident of the district from any of its schools, because of race or color, or religious belief, or personal peculiarities. It is too plain for argument that an equal right to all the schools, irrespective of all such distinctions, was meant.”
We find that the demurrers to the amended alternative writ should have been overruled, and that the trial court erred in sustaining them.
The judgment of the court below is reversed, and this proceeding is remanded to the court below, with instructions to overrule said demurrers, and for further proceedings in accordance With the terms of this opinion. Reversed.