| Ill. | Apr 5, 1889
delivered the opinion of the Court:
On the principal question involved in this controversy, viz., did respondents exclude relator’s children from the high school building of Upper Alton school district on account of color, the finding of the jury must be held to be adverse to respondents. The eighteenth special finding is directly and positively so, and the eleventh and nineteenth, to the effect that they were so excluded by the principal of said school, are so in effect. The resolution of respondents, August 20, 1886, set out in the answer, vested full power in said principal to assign all pupils in said district; therefore, what was done in that respect by the principal, was indirectly done by respondents. We think these special findings are supported by the evidence, and while they are not treated as special verdicts under the recent amendment to our Practice act, they are in this proceeding proper to be considered as findings of fact on the issues submitted to the jury. Even if the general verdict could be said to be a finding in respondents’ favor on this branch of the ease, it is so manifestly the result of misdirection by the court as to be entitled to no consideration.
• By one instruction, the jury are told that “unless you believe, from the evidence, that -the board of education of Upper Alton excluded the children named in the petition from the public schools of Upper Alton, by a resolution of said board of education, on account of color, passed and entered of record, then you should find for the defendant.” By the statute, it is made unlawful to exclude a child from any of the public schools of Upper Alton district on account of color. By the instruction, the jury could only find for relator on proof that his children were excluded from all the public schools of said district. By the statute, it is made unlawful to exclude a child from a public school on account of color, either directly or indirectly; but here the jury are told they must find for respondents unless they believe relator’s children were excluded by a resolution entered of record.
By another of the series of instructions asked by and given on behalf of respondents, the jury was told: “If you believe, from the evidence, that the board of education, (defendants,) in the exercise of a reasonable discretion, furnished to all the children of Upper Alton school district, of school age, facilities for a common school education, as in their judgment would best promote the education of the children and answer the purpose of the law, the jury will find for the defendants. ” Here, again, the requirements of the statute are wholly ignored, and the issue presented by the pleadings entirely lost sight of. Under these instructions the jury could do no less than return a general verdict for defendants; but that verdict is no indication as to what view of the evidence they would have taken on the question now under consideration if they had been properly instructed, while the special verdicts do clearly show .that the jury found, from the evidence, that relator’s children had been excluded from said'school by respondents on account of color.
A careful reading of all the evidence before us forces the conviction that it was the purpose of respondents to require the children of relator, and all other colored children of the district, to attend what had been known as the colored school building, and to exclude all colored children of the district, below the high school grade, from the high school building. Especially are we convinced that these children were practically excluded from the said high school building by-the principal because they were colored children, and that respondents, though informed of that fact, took no steps to have them admitted.
But respondents maintain, that even though this principal question is resolved in relator’s favor, still he can not have a peremptory writ of mandamus, because he has failed to show an express demand by him upon respondents that his children should be so admitted, and their refusal, before filing his petition. The jury has found, as is shown by the foregoing statement of facts, that no such demand was made; therefore, if the position of respondents is legally correct, the general verdict must be sustained, and the prayer of the petition denied.
The argument in support of the proposition that a formal demand and refusal must be shown, is based upon the assumption that the duty here sought to be enforced is of a private nature, affecting only the right of relator, the law being, that in such case a demand is necessary to lay the foundation for relief by mandamus. If, on the contrary, the duty,' the performance of which is sought to be enforced, is a public duty, resting upon respondents by virtue of their office, it is equally well settled that no such demand and refusal are necessary. (High on Ex. Legal Bern. sec. 41, and authorities cited.) The duty here sought to be enforced is not of a private nature, nor is the right demanded by relator merely an individual right, within the meaning of the rule announced. By the statutes of this State, the duty of providing schools for the education of all children between the ages of six and twenty-one in their district, is imposed upon respondents. The legislature has also, by express enactment, provided, that in the performance of that duty they shall not exclude from such schools, directly or indirectly, any such child on account of its color. The duty thus imposed upon respondents is incumbent upon them by virtue of their office. In such case it has been well said, “the law itself stands in the place of a demand, and the neglect or omission to perform the duty stands in the place of a refusal, or, in other words, the duty makes the demand, and the omission is the refusal.”
Again, the right claimed by the relator is not merely a personal right. True, he may, and doubtless does in this particular case, have the peculiar interest of a parent in having his children admitted to a school in which he thinks they have a right to be taught; but after all, it is the public,—the community at large,—that is most deeply interested in the enforcement of this and all other laws enacted for the wise and humane purpose of educating the children of the State. While it was natural and appropriate that the father should become the relator, we entertain no doubt that any citizen of the school district might, with equal right of law, have done so, and maintained the petition. In County of Pike v. The People, 11 Ill. 208, it is said: “Where the object is the enforcement of a
public right, the people are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested, as a citizen, in having the law executed and the right in question enforced.” See, also, City of Ottawa v. The People ex rel. 48 Ill. 240; Hall et al. v. The People ex rel. 57 id. 312; Village of Glencoe v. The People, 78 id. 390.
A formal demand and refusal were not necessary preliminary to the filing of the petition, and therefore the special findings of the jury on that question can have no controlling influence upon the general verdict or the decision of the case.
The powers of school boards to adopt and enforce rules for the management and government of schools, to assign pupils to the several schools in their districts, (making no distinction on account of color,) to expel pupils for disobedience or misconduct, or the proper exercise of discretionary power, are not called in question by this proceeding.
Adhering to the doctrine announced in The People ex rel. v. Board of Education, 101 Ill. 308" date_filed="1882-01-16" court="Ill." case_name="People ex rel. Longress v. Board of Education">101 Ill. 308, on the special findings of fact by the jury, the prayer of the petition is allowed, and á writ of mandamus ordered.
Mandamus ordered.