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Mullins, By, et al. v. Belcher.
[NO NUMBER IN ORIGINAL]
COURT OF APPEALS OF KENTUCKY
142 Ky. 673; 134 S.W. 1151; = 1911 Ky.=20 LEXIS 266

March 9, 1911, = DecidedPRIOR HISTORY: = [***1] Appeal=20 from Pike Circuit Court.

DISPOSITION: Judgment=20 affirmed.

HEADNOTES: = Schools--Colored=20 Children--Constitutional Provision.--Under section 187 of the = Constitution of=20 Kentucky providing for the maintenance of separate schools for white and = colored=20 children the words "colored children" include all children wholly or in = part of=20 Negro blood, or having any appreciable mixture thereof. Children who are = of=20 Negro blood to the extent of one-sixteenth are therefore colored = children and=20 not entitled to attend schools maintained for white children.
COUNSEL: J. E. CHILDERS and A. F. CHILDERS for = appellant.
ROSCOE VANOVER for appellee.
JUDGES: WM. ROGERS CLAY, COMMISSIONER.
OPINIONBY: WM. ROGERS CLAY
OPINION: [*673] [**1151] = OPINION OF THE=20 COURT BY WM. ROGERS CLAY, COMMISSIONER--Affirming.

Troy=20 Mullins and Loucreta Mullins are infants between the years of six and = twenty.=20 They reside in Common School District No 28 in Pike county, Kentucky. = Appellee=20 Edmond Belcher is the trustee of that school district. He notified = appellants=20 that they could not attend said school. Appellants, suing their guardian = and=20 next friend, Miles Ratliff, brought this action against appellee Edmond = Belcher=20 to enjoin him from interfering or in anywise preventing their attending=20 [*674] said school. Appellee defended on the ground that the = appellants were colored children, and, therefore, not entitled to attend = the=20 school in question, which was maintained and conducted exclusively for = the=20 education of white children. The affirmative allegations of the answer = were=20 denied by reply. Proof was then taken and the case submitted. The trial = judge=20 made a separate finding of the law and the facts. He found that=20 appellants [***2] had one-sixteenth negro blood, and = concluded, as a=20 matter of law, that they were "colored children," and, therefore, not = entitled=20 to attend the school in question, and entered judgment accordingly. From = that=20 judgment this appeal is prosecuted.

Section = 187 of the=20 Kentucky Constitution is as follows:

"In = distributing=20 the school fund no distinction shall be made on account of race or = color, and=20 separate schools for white and colored children shall be maintained."

The question before us is: Who are "colored = children"=20 within the meaning of the above section?

While it may=20 be doubted if appellants' proportion of negro blood is as small as=20 one-sixteenth, it is not contended that it is less. We shall, therefore, = consider the case from this standpoint; that is, that their proportion = of negro=20 blood is one-sixteenth.

For appellants it = is insisted=20 that, in order to constitute a person a "colored person," he must not = only have=20 an appreciable admixture of negro blood, but must also show the racial=20 characteristics of the negro. In this connection it is insisted that = appellants=20 are as fair as members of the white race, and there is nothing in their = personal=20 appearance to indicate the presence [***3] of negro blood. In = our=20 opinion, however, the question does not depend upon personal appearance. = The=20 color of the person may be one means of indicating the class to which he = belongs, but the question in its final analysis depends upon whether or = not the=20 person has, or has not, an appreciable admixture of negro blood.
In the case of Enos Van Camp v. The Board of Education of the = Incorporated Village of Logan (decided in 1859), 9 Ohio St. 406, the = Supreme=20 Court of Ohio, in discussing the question arising under a statute of = that State=20 providing for separate schools for white and colored children, used the=20 following language:

"Our standard = philologist, Webster,=20 defines 'colored people' to be 'black people--Africans or their = descendants,=20 [*675] mixed or unmixed.' Such is also the common = understanding of=20 the term. A person who has any perceptible admixture of African blood is = generally called a colored person. In affixing the epithet 'colored,' we = do not=20 ordinarily stop to estimate the precise shade, whether light or dark, = though=20 where precision is desired, they are sometimes called 'light colored,' = or 'dark=20 colored,' as the case may be. If we look at the evils the = law [***4] =20 was intended to remedy, we shall arrive at the same result. One of the = evils=20 undoubtedly was the repugnance felt by many of the white youths and = their=20 parents to mingling, socially and on equal terms, with those who had any = perceptible admixture of African blood. This feeling or prejudice, if it = be one,=20 had been fostered by long years of hostile legislation and social = exclusion. The=20 general assembly, legislating for the people as they were, rather than = as,=20 perhaps, they ought to have been, while providing for the education and=20 consequent ultimate elevation of a long-degraded class, yielded for the = time to=20 a deep-seated prejudice, which could not be eradicated suddenly, if at = all. Such=20 an arrangement, in the present state of public feeling, is far better = for both=20 parties--for the colored youth as well as those entirely white. If those = a shade=20 more white than black were to be forced upon the white youth=20 [**1152] against their consent, the whole policy of the law = would be=20 defeated. The prejudice and antagonism of the whites would be aroused,=20 bickerings and contentions become the order of the day, and the moral = and mental=20 improvement of both classes retarded. It would seem, then,=20 from [***5] this examination of the law of 1853, and the=20 circumstances under which it was passed, that the words 'white' and = 'colored,'=20 as used in that act, were both used in the ordinary and common = acceptation, and=20 that any other construction would be violence to the legislative intent, = and=20 perpetrate the very evils that act was intended to remedy."
In the recent case of State v. Treadaway, et al., 52 So. 500, = the=20 Supreme Court of Louisiana, speaking through Mr. Justice Provosty, = said:
"There is a word in the English language which = does=20 express the meaning of a person of mixed negro and other blood, which = has been=20 coined for the very purpose of expressing that meaning, and because the = word=20 negro was known not to express it, and the need of a word to express it = made=20 itself imperatively felt. That word is the [*676] word = 'colored.'=20 The word 'colored' when used to designate the race of a person is = unmistakable,=20 at least in the United States. It means a person of negro blood, pure or = mixed;=20 and the term applies no matter what may be the proportions of the = admixture, so=20 long as the negro blood is traceable."

And = in the still=20 more recent case of Isabel I. Wall, By, et al. v. James F. Oyster, et = al., 38=20 Wash. Law Rep. 794, [***6] the Court of Appeals of the = District of=20 Columbia held that, under the act of Congress providing for the = maintenance of=20 separate free schools for white and colored children in the District of=20 Columbia, a child possessing from one-eighth to one-sixteenth negro = blood was a=20 "colored child." After citing the cases above referred to, that court = said:
"The most reliable sources of information in = this regard=20 are the dictionaries which are universally accepted as the best = exponents of the=20 popular meaning of the words of the language. It is sufficient to say, = without=20 quoting from them, that these show that the word 'colored' as applied to = persons=20 or races is commonly understood to mean persons wholly or in part of = negro=20 blood, or having any appreciable admixture thereof. See Webster's = International,=20 the Standard, and the Century Dictionary."

As the=20 makers of the Constitution did not undertake to define the words = "colored=20 children" as employed in section 187, we conclude that these words were = used in=20 their ordinary and general sense, and that they include all children = wholly or=20 in part of negro blood, or having any appreciable admixture thereof. It = follows=20 that the injunction prayed for was [***7] properly = refused.
Judgment affirmed.

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