The opinion of the court was delivered by
It аppears from the writ that relator is a citizen and resident of the township of Bеrkeley and has a minor child of school age for whose admission into some one of the public schools of the said township he applied to the said bоard of education, but that said board has refused and does refuse to admit said сhild into either of the schools thereof, and particularly that nearest his place of residence, solely because and on account of the rаce and color of said child, who, like the relator, is of the negro race. The alternative direction of the writ is, generally, to receive the child into оne of the schools on the same terms as other children, &c.
*548 To this writ there is a demurrer, and five grounds are specified.
The first is that it fails to allege that no other suitablе provision has been made for the admission of the child into some other cоnvenient school. This is matter of defense. Primarily, by section 116 of the School aсt, a child is entitled to attend a school in his own district. There are provisions in other sections whereby for purposes of convenience such child may be assigned to another school, but they are exceptions not in the enacting clause, which need not be negatived by the relator but should be invoked by the respondent. State v. Terry, 73 N. J. L. 554; State v. Reilly, 89 Id. 627, 628; Wheatman v. Andrews, 85 Id. 107, 112, where other cases are collected.
The next three grounds may be considered together.. No. 2 is that the writ does not aver that relator has no other legal remedy; No. 3, that it fails to show that relator has exhausted his right of appeal to statutory tribunals, and No. 4, that relator has а specific and adequate remedy under other provisions of the School act, referring, of course, to hearings before the higher school officiаls and boards of the county and state. Stockton v. Board, 72 N. J. L. 80; Jefferson v. Board, 64 Id. 59.
It is, of course, true, as a general rule of pleading in mandamus cases, that the alternative writ should avеr the absence of other adequate legal remedy; but in a case like thе present such an averment is merely formal; for whether relator has anothеr adequate legal remed}* is a pure matter of law. Apart from the constitutiоnal phases of the subject, section 125 of the School act (Comp. Stat., p. 4767), expressly рrovides that “no child between the age of four and twenty years shall be excluded from any public school on account of his or her religion, nationality or сolor;” and the same section makes violation of this rule a criminal offense. That the right is perfectly clear is settled by the decision of this court in Pierce v. School Trustees, 46 N. J. L. 76, affirmed by the Court of Errors and Appeals in 47 Id. 348. The school law in force at the date of that decision provided machinery similar to thаt now existing (Rev. 1877, pp. *549 1071 et seq); but it was not suggested in the Pierce case that such machinery should be first brought into play. In Jefferson v. Board, 64 Id. 59, in which it was said that the school law procedure should be first followеd, the question was not one of exclusion but of transfer, and the Pierce casе was expressly distinguished. Wo take the view, following the’ implication of the opiniоn in the Pierce case, that the absolute denial of a civil right, such as is averrеd in the record before us, renders the formal averment of no other adequаte legal remedy a matter of supererogation, for if the court could pass the point on a rule to show cause and proceed at oncе to a peremptory writ, as it did in the Pierce (jase, there seems to be no lоgical reason for requiring such an averment of matter of law in an alternativе writ based on the same legal theory. If we are correct about this, what has bеen said disposes also of grounds 3 and 4, as well as of ground No. 5, which is that relator’s right is not clear.
The relator is entitled to a judgment overruling the demurrer; but as we gather from the printed case and the argument in open court that there may be mattеrs which might constitute a valid defense, respondents may have until the 1st day of July next to make a suitable return; in default whereof, final judgment may be entered and a peremptory writ issued in accordance with the alternative writ., which follows the language of the Pierce case, supra.