Lead Opinion
Relator asks a mandamus compelling defendants to admit him into the public school of which they are trustees.. They object that the remedy sought should not be granted, first: because they have not the power to admit, nor to deny admission; second: because the applicant is a negro.
The power to admit to the public schools is not in words conferred upon trustees in this state, but it is so inseparably connected with their specified powers, and so inevitably a conclusion therefrom, that no argument is needed to prove its necessary existence. Stats. 1864-5,413; 1867,89. The trustees have general control and supervision; and while they may not see fit to require any applicant for school privileges to obtain from them an order of admission, they have the power to make such a'regulation; and upon the other hand, every person qualified under the law to attend the public schools is entitled to such an order upon due demand.
The question then is, what qualifies a person to receive such an order. The applicant must be over six and under eighteen years of age, and ordinarily a resident of the district where admission is sought. So being, it is contended for relator that admission fol
While it may be, and probably is, opposed to the spirit of the former, still it is not obnoxious to their letter; and as no judicial action is more dangerous than that most tempting and seductive practice of reading between the written lines, and interpolating a spirit and intent other than that to be reached by ordinary and received rules of construction or interpretation; such course will be declined, and reference at once had to the constitution of this state. What says that ? “ The legislature shall provide for an uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year; * * * and the legislature may pass such laws as will tend, to secure a general attendance of the children in each school district upon said public school.” Const. Art. XI, Sec. 2. It is further provided in that article, of certain pledged revenues, that “ the interest thereon shall, from time to time, be apportioned among the several counties in proportion to the ascertained numbers of the persons between the ages of six and eighteen years in the different counties, * * * ” Section 3.
These are the only references made to, or designation of, the beneficiaries of the school fund. Either something or nothing is provided as to such. If the constitution provides anything in the language quoted, it provides for the education of all children of the state, between the ages of six and eighteen years; by means
My conclusion is that certain funds are pledged and certain taxation allowed for the support of common schools, which are public and open to be enjoyed by all resident children between the ages of six and eighteen years; subject, perhaps, to some qualification as before suggested. So it has been held in Massachusetts under a constitution no more' specific upon the subject than that of this state, and in Michigan under a statute similar to the one under consideration, minus its fiftieth section. Roberts v. Boston, 5 Cush. 198; People v. The Board of Education of Detroit, 18 Mich. 400. This general position is, however, to be taken subject to the very great powers of the trustees to arrange and classify the schools
Whether it be well or ill to classify or divide, on either or all of the conditions suggested, or upon any other, is entirely within the discretion of the trustees, acting intelligently within their powers.
I think the mandamus should be ordered.
Concurrence Opinion
concurring specially.
I cannot concur in the view taken by my brother Whitman, of that section of the constitution upon which his conclusion is founded$ but it is very clear to my mind that the act in question, so far as it prohibits the admission of negroes to the public schools, is in direct conflict with Section 21 of the constitution, which declares that “in all' cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the state.”
One of the great fundamental principles underlying our government, as indeed it must be an indispensable element of all truly republican governments, is, that every citizen is equal before the law, being entitled to all the protection which it grants to life and property, and all the immunities and advantages which it may afford for culture or the amelioration of the condition of any individual or class. This has always been recognized as an essential principle of our form of government, not only by the theoretical writers upon the subject, and by all the distinguished statesmen of our country, but is the uniform language of the courts wherever the question is brought before them. Cicero tells us that the force of law consists in its being made for the whole community. Rousseau, that “ it is precisely because the force of things tends always to destroy equal
And again says this author: “ Equality of rights, privileges and capacities unquestionably should be the aim of the law; and if special privileges are granted, or special burdens or restrictions imposed in any case, it must be presumed the legislature designed to depart as little as possible from this fundamental maxim of government. The state, it is to be presumed, has no favors to bestow, and designs to inflict no arbitrary deprivation of rights. Special privileges are obnoxious, and discriminations against persons or classes are still more so; and; as a rule of construction, are always to be leaned against, as probably not contemplated or designed.”
“The rights of every individual,” say the court, in Wally’s Heirs v. Kennedy, “ must stand or fall by the same rule or law that governs every other member of the body politic or land, under similar circumstances; and every partial or private law which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were-it otherwise, odious individuals and corporations would he governed by one lavr, and the mass of the community and those who made the law, by another; whereas, the like general law, affecting the whole community equally, could not have been passed.” 2 Yerg. 554.
Again, in the case of Lewis v. Webb, 3 Greenleaf, 326, the court use this language: “ On principle, it can never be within the bounds of legitimate legislation to enact a special law or pass a resolve dispensing with the general law in a particular case, and granting a privilege and indulgence to one man by way of exemption from the operations and effect of such general law, leaving all other persons under its operation. Such a law is neither just nor reasonable in its consequences. It is our boast that we live under a government
This is the great foundation principle of government, the abrogar ' tion of which must inevitably end in the ruin and destruction of our institutions. To maintain it as far as possible was undoubtedly the purpose of the section of the constitution above quoted. Why else require all laws, so far as practicable,, to be general and uniform throughout the state ? No other object is manifest except to give to all citizens the equal' advantage of the laws, to deprive the legislature as far as possible of the power of creating distinctions, and granting immunities and exemptions to one class of citizens over another. Nothing can be conceived more obnoxious or antagonistic to this principle than the law in question. It deprives an entire class of citizens of one of the most inestimable privileges of political organization; makes the most invidious discrimination against them, exacting a revenue from their property for the organization and support of public schools, and denying them their advantages; holding them amenable to the law, but withholding from them its highest privileges.
Thus it is manifest that the law, so far as it discriminates against a class of citizens, is at least opposed to the spirit of the constitutional clause referred to. But is it opposed to the letter ? To determine this it is necessary to ascertain whether the act is a general law, within the meaning of the constitution, and if not, then could a general law “ be made applicable.” Sedgwick, defining general -and special statutes, says: “ Public, or general statutes are, in England, those which relate to the kingdom at large. In this country they are those which relate to or bind all within the jurisdiction 'of the law-making power, limited, as that power may be, in its territorial operation or by constitutional restraints. Private or special statutes relate to certain individuals, or particular classes of men.” In Holland’s case, 4 Rep., we find a full discussion of this question. After stating the rule to be that an act is special which does not include the genus, but only the species or individuals, Coke says, in illustration of the rule: “ So, mystery or trade is a general word, trade of grocery is special, and this
I am not aware that the correctness of the general rules stated by Lord Coke in this case has been questioned, although many cases have been found where they have been misapplied. Still, the general rule is universally recognized, that a law which does ' not embrace all persons in the same situations or conditions, is a special law. Whenever the courts, .maintain a law passed for the regulation of some local or special subject, it will be observed it is done upon the ground that, although local or special in some respects, it in some way affects the entire people, or from the very nature of the subject of legislation a general law would manifestly be inapplicable. I have been unable to find any case which has held an act to be general, which extended a privilege to one class of citizens to the exclusion of others in like circumstances. To make the law general it is not perhaps necessary, under the rule of Lord Coke, that it should include all persons within the jurisdiction of the law-making power, but Only that it embrace all who are in like condition, or who are embraced within a class designated by circumstances peculiar to itself. But what are the circumstances which are.generally recognized as creating such class ? Only age and sex, or such as naturally result from the social state, as the circumstance of trade, employment, profession, or the like. These' conditions are the natural fruits of the political compact, depending upon no act of legislation for their creation, and such are the class
However, although it be not a general law, it becomes necessary still to determine whether the subject matter be such' as will admit of the passage of any but a special act. - It will be seen the constitution requires all laws to be general and uniform thoughout the state when such laws “ can be made applicable.” That this imposes the duty upon the legislature of adopting general laws where they can be made applicable, there is no question; the difficulty exists in determining what is to be understood by a law being applicable. The thing to which it is to be applicable is evidently the subject matter of legislation. It could not be said to be applicable to anything else. But what is to make a law applicable to the subject of legislation ? The general definition of this word applicable is suitable, proper, appropriate, adapted.
A general law, then, can only be applicable, suitable or appropriate, when the subject concerning which the law treats or which calls for the legislation is general in its character; that is, a subject in 'which the entire people or class legally recognized as such have an interest. If the subject of the law, independent of the law itself, be purely local or special, in which the people at large have no interest, then clearly a general law would be inapplicable and uncalled for; it would be legislating for all the people, when the situation or condition of only a few demanded it. But if the subject of the law be one in which, from its very nature, the whole people are interested, then the legislature is required to enact a general law. To illustrate: the subject of removing the county seat
Can there be any doubt but the subject of education, or the control and management of the public schools, and the question as to what children shall or shall not be admitted to the privileges afforded by them, are matters of general interest? No question can be suggested in which the entire people of the state are more generally concerned. It is confined to no class, race, or loijality. All who pay taxes at all contribute to the establishment and support
As to the power of the trustees to classify scholars, putting some „ in one building or school and others in another, I fully agree with Judge Whitman. So long as the same advantages of education are given to all, such classification would not interfere with the constitutional principle upon which I place my conclusion.
I therefore concur in issuing the writ.
Dissenting Opinion
dissenting.
In the oral argument of this cause, it was not suggested that the statute in question was in conflict with any provision of our state constitution. The case of the relator was sought to be maintained on the ground that the statute was in violation of the fourteenth amendment to the constitution of the United States. I fully agree with my associates that this position of counsel is utterly untenable. The statute does not abridge any privilege or immunity of the applicant, as a citizen of the United States. The privilege of admission to the common schools of this state is no more inherent in or connected with the status of citizenship than is the elective franchise ; and to secure that against unfriendly state legislation, an additional amendment was required and was proposed. This privilege is not embraced within any meaning which has ever been attributed to the
I also quite agree with Chief Justice Lewis, that the eleventh article of our state constitution contains no provision in the slightest degree affecting the validity of this statute. The provision that the legislature may pass laws tending to secure a general attendance of children, was simply intended to affirm the power of the legislature to provide for compulsory education, in case the adoption of such a system should be deemed expedient. Such laws, elsewhere enacted, have been declared to be unconstitutional; and the evident and only object and scope of the provision was to set at rest the question of legislative power in this regard. It is argued that, because the school funds are directed to be apportioned in proportion to the numbers of all persons between certain ages, therefore all such persons must be admitted to the schools. This seems to me a most unwarrantable conclusion. If any principle of constitutional construction can be said to be well settled, it is that the courts cannot declare any limitation of the general powers con-, ferred upon the legislature, except those imposed by the fundamental law, either in express terms or by necessary implication. Had the intention been to compel the educatibn of all, it is but fair to the framers of the instrument we are construing to suppose that language would have been at their command to express that intention. But it is evident that no such idea was in their contemplation. What they were seeking for, they found — namely, a rule of apportionment which would most nearly, in its practical operation, approximate a division of the fund according to the educational necessities of each county. The argument, if it proves anything, proves too much — for, under this construction, no discrimination whatever could be made. The blind, the idiotic, the insane, the vicious and the diseased must all be admitted; and if “ may,” in the preceding section, is to read “ shall,” then the whole school law is void, because it fails to accord to the Shoshone infants their constitutional privilege of compulsory education.
- The cases cited from Massachusetts and Michigan are wide of the mark. In that from 5 Cushing, the question presented is thus stated by Chief Justice Shaw“ Conceding, therefore, in the full
The next question is, whether this is a special law. This term is used in the constitutions of many of our sister states, and their courts are generally, if not universally, in 'accord as to its meaning. In a late Iowa case, the court say: “A law applying to all railroad corporations is just as general and uniform as it would be if it applied to all common carriers. Very many laws, the constitutionality of which is not doubted, do hot operate alike upon all citizens of the state. These laws are general and uniform, not because theyl operate upon every person in the state, for they do not; but because! every person who is brought within the relations and circumstances' provided for is'affected by the law. They are general and uniform in their operation upon all persons in the like„situation; and the fact of them being general and uniform is not affected by the number of
In Maryland, it is held that all that is required to make a statute general, as distinguished from special, is that it shall apply to all persons within the territorial limits described in the act; that the object of the constitution, in prohibiting special as distinguished from local legislation, was to prevent the abuses that occurred in the great multiplicity of laws passed for particular and individual cases, and not to prevent legislation to meet the wants of communities less extensive in their territorial limits than the state. 29 Md. 521; vide 58 E. C. L. Rep. 620. According to these authorities, the statute in question is clearly a general law, and I do not understand Judge Lewis as dissenting from the principles they enunciate. But he contends for an additional element in the definition of a general law, the existence of which, it seems to me, may be conceded for the sake of the argument, without prejudice to the conclusion that this statute falls strictly within that definition. It is not denied that the legislature may classify persons by sex, age, occupation, residence, or the like, but it is said that it cannot make or adopt novel and arbitrary classifications; that all persons are to be deemed in the like situation, between whom there exists neither a substantial distinction, nor a distinction which has been customarily recognized, or which precedent has sanctioned as warranting this sort of discriminating legislation. It is__then_assumed that the only difference between a negro, child, and a--white_child lies in the color of the skin; and on this assumption it is argued that this statute introduces a classification entirely novel and arbitrary. The fallacy of the argument is patent. It singles out the m^trivial^atii,unimpQrtant..of..the .marks of;dis^tmction_betwj^n the two races. The other and vital ones — those the existence of whicfihaldnUiñduced the legislature to enact this section of the statute— are ignored. I find them well stated by an eminent judge, in an opinion written about the time this statute was passed, and which affirms the right of a public carrier to separate his passengers by the characteristic of color. He says: “ The right to separate being clear in proper cases, and it being the subject of sound regulation, the question remaining to be considered is,
I understand Judge Lewis to admit that the legislature can exclude all females; such a statute would not be special, according to his definition. Yet it certainly cannot be maintained that, so far as the right to an education is 'concerned, there is any more substan^ tial difference between a white' boy and a white girl, than between a white and a negro child. It is said that the one is a customary and the other a novel classification. But is this so ? At the time this statute was enacted, and when our constitution was adopted, the negro was not a voter; he could not hold office ; he could not testify in a civil case where a white was a party ; and the intermarriage of the two races was unlawful, and the solemnization of such a marriage a misdemeanor. In the language of Judge Agnew: “ Under the constitution and the laws, the races stood in a separate relation to each other. The same difference is found in the institutions and customs of the state. There had been no inter-mixture, gocially,.religiously, civilly,_.pr politically.”
So far from being a novel classification, it was not only known to and recognised by our own constitution, statutes and customs, but was almost universally made the basis of legislation throughout the United States. In Indiana, for instance, under a similar constitutional inhibition of special legislation, negroes were long prohibited from testifying, by a statute the constitutionality of which was never assailed. It is admitted that, we cannot disregard the classifications of our own constitution, and it cannot be denied that there is no one of them more prominent than that which gives to the White the privilege of voting and holding office, and denies the same privilege to the negro. Hence it inevitably follows that, when this statute was approved, it was a valid and constitutional law. How, then, has it become void ? Not, it is conceded, because it is now, any more than it was then, repugnant to any provision of the laws or constitution of the United States — not by any amendment of our own. By what other process a statute, constitutional when enacted,can have becopae unconstitutional, I cannot imagine. Suppose a sixteenth amendment should be adopted, declaring that no
It seems to have been assumed throughout, that the statute excludes negroes from the public schools; but if the alternative be, either to declare the section void, or to construe it as positively commanding the board of trustees to establish a separate school for the education of negroes, the latter course should be adopted. The rules on this subject are thus expressed by the text writers: “ As a conflict between the statute and constitution is not to be implied, it would seem to follow,-where the meaning of the constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect. This is only saying, in another form of words, that the court must construe the statute in accordance with the legislative intent; since it is always to be presumed the legislature designed the statute to take effect, and not to be a nullity. Where a statute directs the doing of a thing for the sake of justice or the public good, the word “may” is the same as the word “shall.” The words shall or may are to be construed as imperative in all cases where a public body or officers have been
I think the mandamus should be denied.