LexisNexis(TM) = Academic

Cory et al. v. Carter.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF INDIANA
48 Ind. 327; 1874 Ind. LEXIS = 377

November Term, 1874, = DecidedSUBSEQUENT HISTORY: [**1] Reported at: 48 = Ind. 327=20 at 367.

PRIOR HISTORY: From = the Marion=20 Superior Court.

DISPOSITION: The = judgment is=20 reversed, with costs.

HEADNOTES: = Constitutional=20 Law. -- Schools. -- Education of Colored Children. -- Separate = Schools.=20 -- The act of May 13th, 1869 (3 Ind. Stat. 472), entitled "an act to = render=20 taxation for common school purposes uniform, and to provide for the = education of=20 the colored children of the State," provides that a school tax shall be = levied,=20 without regard to the race or color of the owner of the property taxed; = that all=20 children, without regard to race or color, shall be included in the = enumeration=20 for school purposes, the colored children to be enumerated in separate = lists=20 from those in which the other school children are enumerated, and to be=20 organized into separate schools, having all the rights and privileges of = other=20 schools; and if there be not a sufficient number of colored children, = within=20 attending distance, to form a separate school for each district, it is = provided,=20 that the trustees may consolidate several districts into one; or if = there be not=20 a sufficient number of colored children within reasonable distance to = thus=20 consolidate, the trustees shall provide such other means of education = for=20 colored children as shall use their proportion, according to number, of = school=20 revenue to the best advantage.

Held, in a=20 suit by a negro father for a mandate to compel the admission of his = children=20 into a school for white children, that this statute is not in conflict = with=20 section 19 of article 4 of the state constitution, which provides, that = every=20 act shall "embrace but one subject and matters properly connected = therewith;=20 which subject shall be expressed in the title."
Held, also, that the statute is not in conflict with = section 23=20 of article 1 of the state constitution, which declares, that "the = General=20 Assembly shall not grant to any citizen, or class of citizens, = privileges or=20 immunities which, upon the same terms, shall not equally belong to all=20 citizens."

Held, also, that = said statute=20 is not in conflict with section 1 of article 8 of the state = constitution, which=20 makes it the duty of the General Assembly "to provide by law for a = general and=20 uniform system of common schools, wherein tuition shall be without = charge, and=20 equally open to all."

Held, = also, that=20 said statute is not in conflict with section 2 of article 4 of the = Constitution=20 of the United States, which declares, that "the citizens of each state = shall be=20 entitled to all privileges and immunities of citizens in the several = states."
Held, also, that said statute is = not in=20 conflict with the thirteenth or fourteenth amendment of the Constitution = of the=20 United States, or with earlier amendments, or with the act of Congress = of April=20 9th, 1866, known as the "Civil Rights Bill."
Constitutional Law. -- Thirteenth Amendment of = Constitution of=20 United States. -- The thirteenth amendment abolished slavery within = the=20 limits of the United States.

Constitutional=20 Law. -- Fourteenth Amendment. -- First Clause. -- The first = clause of the=20 fourteenth amendment made negroes citizens of the United States, and = citizens of=20 the State in which they reside, and thereby created two classes of = citizens, one=20 of the United States and the other of the state.

Constitutional Law. -- Second Clause. -- The second = clause of=20 said amendment prohibits the states from abridging the privileges and = immunities=20 of citizens of the United states. This clause places the privileges and=20 immunities of citizens of the United States under the protection of the = Federal=20 Constitution, and leaves the privileges and immunities of citizens of a = state=20 under the protection of the constitution and laws of the state. The = second=20 clause simply contains an inhibition of power to the states, and does = not confer=20 upon the Federal Government power to protect or enforce, by legislation, = the=20 privileges and immunities of citizens of a state.
Constitutional Law. -- Third and Fourth Clauses. -- = The third=20 and fourth clauses of the fourteenth amendment only prohibit the states = from=20 doing acts which they were prohibited from doing by other clauses of the = Federal=20 Constitution.

Constitutional Law. = --=20 Thirteenth, Fourteenth, and Fifteenth Amendments. -- Limitation of Power = of=20 State. -- The thirteenth, fourteenth, and fifteenth amendments to = the=20 Federal Constitution impose the following limitations and restrictions = upon the=20 sovereign power of the State of Indiana: 1. The State cannot in the = future,=20 while a member of the Federal Union, change her constitution so as to = create or=20 establish slavery or involuntary servitude, except as a punishment for = crimes=20 whereof the party shall have been convicted. 2. The State cannot deny to = a=20 citizen of the United States or deprive him of those national rights,=20 privileges, and immunities which belong to him as such citizen. 3. The = State=20 must recognize as its citizens any citizen of the United States who is = or=20 becomes a bona fide resident therein. 4. The State must give to = each=20 citizen of the United States, who is or becomes a bona fide = citizen=20 therein, the same rights, privileges, and immunities secured by her = constitution=20 and laws to her white citizens.

Constitutional=20 Law. -- Common Schools. -- The system of common schools in this = State has=20 its origin in, and is provided for by, the constitution and laws of this = State.=20 It is purely a domestic institution, and subject to the exclusive = control of the=20 constituted authorities of the State. The Federal Constitution does not = provide=20 for any general system of education to be conducted and controlled by = the=20 National Government, nor does it vest in Congress any power to exercise = a=20 general or special supervision over the states on the subject of = education.
Constitutional Law. -- Uniformity of = Schools.=20 -- Under our constitution, our common school system must be general, = uniform,=20 and equally open to all, but uniformity will be secured when all the = schools of=20 the same grade have the same system of government and discipline, the = same=20 branches of learning taught, and the same qualifications for = admission.
Constitutional Law. -- The legislature, = under our=20 state constitution, as it existed without the limitations imposed upon = the=20 sovereign power of the State by the fourteenth amendment, had the power = to=20 provide for the education of only the white children of the State; but = since its=20 ratification no system of public schools would be general, uniform, and = equally=20 open to all, which did not provide for the education of the colored = children of=20 the State.

Constitutional Law. -- The = classification of scholars, on the basis of race or color, and their = education=20 in separate schools involve questions of domestic policy which are = within the=20 legislative discretion and control, and do not amount to an exclusion of = either=20 class.

Constitutional Law. -- = Power of=20 Courts. -- The legislature has not provided for the admission of = colored=20 children into the same schools with the white children, in any = contingency; and=20 even if the fourteenth amendment absolutely required their admission, = the courts=20 cannot, in the absence of legislative authority, confer that right upon = them.
Constitutional Law. -- The legislature = has the power=20 to provide for either separate or mixed schools, but it having failed to = provide=20 for mixed schools, the courts must execute the law as it comes from the=20 law-making department of the government. If the act of May 13th, 1869, = should be=20 held unconstitutional and void, there would then be no law providing for = the=20 enumeration and education of the colored children of the State, and they = would=20 be left without any provision whatever for their education.
Constitutional Law. -- Construction = of=20 Statute. -- There being no averment that the trustee had failed to = provide=20 for the education of the children of the plaintiff outside of the = schools for=20 the white children, no question arose as to what would be a compliance = with such=20 provision of the statute.

COUNSEL: = N. B. Taylor,=20 F. Rand, and E. Taylor, for appellants.

J. W.=20 Gordon, T. M. Browne, and R. N. Lamb, for appellee.
JUDGES: Buskirk, J. Osborn, J.
OPINIONBY: Buskirk

OPINION:=20 [*329] Buskirk, J.--This was a proceeding by mandate, on the = part of=20 the appellee against the appellants. The appellee, in his petition, = alleged that=20 he was a citizen of the State of Indiana and resided in school district = number=20 two, in Lawrence township, Marion county, in the said State, and was a = taxpayer=20 therein; that he was the father of two children, Mary and Edward Carter, = and the=20 grandfather of Lucy and John Carter, all of whom resided with him; that = he was a=20 negro of African descent, and that his said children and grandchildren = were all=20 negroes of the full blood and of the same descent; that his children and = grandchildren were respectively of the age that entitled them to the = benefits of=20 the common schools in the said district; that there was a common school = for=20 white [*330] children in progress in said district, and that = his=20 said children and grandchildren presented themselves at the=20 school-house [**2] in said district and demanded admission = and to be=20 taught therein with the white children, but were refused admittance by = the=20 appellants Beaver and Craig, the director and teacher of said school, = for the=20 reason that the said school was a school for white children, and not for = negro=20 children; that after the refusal aforesaid, he caused to be served upon = the=20 appellants a written request and demand that his said children and = grandchildren=20 should be received and taught in the said school with the white children = of said=20 district, but they were refused admission solely upon the ground that = they were=20 negroes; that said appellants and all other persons have wholly = neglected,=20 failed, and refused, and still neglect, fail, and refuse, to provide any = school=20 in said district, or in any adjoining district, near enough for said = children or=20 grandchildren to attend as scholars; and that by reason of the premises = his said=20 children and grandchildren are denied all opportunity to attend any = school in=20 said district or elsewhere in the neighborhood, as in right and law they = are=20 entitled to do.

There is no allegation that = the trustee=20 of said school district number two had failed or refused to provide=20 the [**3] means of education for such children within the = district,=20 outside of the said school for white children, to the extent of their=20 proportion, according to number, of the school revenues of the said = district.
The aid of the court was requested to declare = the right of=20 admission of said negro children into the school for white children, and = to=20 compel the appellants to admit them.

An = alternate writ=20 was issued against the appellants, requiring them to admit such children = into=20 the school in said district for white children or appear and show cause = why they=20 should not so admit such children.

The = appellants=20 appeared and filed separate demurrers to the complaint, upon the ground = that it=20 did not state facts sufficient to constitute a cause of action, but the=20 demurrers were overruled; and the appellants refusing to plead further, = but=20 electing [*331] to stand by their exceptions to the rulings = of the=20 court, the court gave judgment for a peremptory writ of mandate.
The appellants appealed to the general term, where the = judgment of the=20 special term was affirmed.

The error = assigned is, that=20 the superior court, in general term, erred in affirming the judgment of = the=20 court in special term. [**4]

The question=20 presented for our decision is, whether the court below erred in = overruling the=20 demurrer to the complaint, the correct solution of which will depend = upon the=20 proper construction to be placed upon the constitution and statutes of = this=20 State and the Constitution of the United States; and as preliminary to = the=20 consideration of the grave constitutional questions arising in the = record, we=20 proceed to inquire what provisions the legislature has made for the = education of=20 the white and colored children of the State.

The act of=20 March 6th, 1865, provided for the annual assessment and collection of a = tax on=20 the property, real and personal, in the State (except that owned by = negroes and=20 mulattoes), for supporting a general system of common schools in the = State. It=20 provided for the enumeration each year of the white children within the=20 respective townships, towns, and cities in the State, between the ages = of six=20 and twenty-one years, exclusive of married persons. It provided the = officers and=20 agencies for the system, the mode and means of carrying it on, for = locating and=20 establishing schools, and carrying them on, for building school-houses, = and=20 employing teachers, etc. It was essentially [**5] white--none = but=20 white children between the named ages, and who were unmarried, were = entitled to=20 its privileges. 3 Ind. Stat. 440-472; Draper v. Cambridge, = 20 Ind.=20 268.

At the session of the legislature of = this State=20 next after the ratification of the fourteenth amendment to the = Constitution of=20 the United States, an act was passed by the General Assembly of this = State,=20 entitled "an act to render taxation for common school purposes uniform, = and to=20 provide for the education [*332] of the colored children of = the=20 State," which was approved May 13th, 1869, and is as follows:
"Section 1. Be it enacted by the General Assembly of the = State of=20 Indiana, that in assessing and collecting taxes for school purposes = under=20 existing laws, all property, real and personal, subject to taxation for = State=20 and county purposes, shall be taxed for the support of common schools = without=20 regard to the race or color of the owner of the property.
"Sec. 2. All children of the proper age, without regard to = the race or=20 color, shall hereafter be included in the enumeration of the children of = the=20 respective school districts, townships, towns and cities of this State = for=20 school purposes; but in making [**6] such enumeration the = officers=20 charged by law with that duty shall enumerate the colored children of = proper=20 age, who may reside in any school district, in a separate and distinct = list from=20 that in which the other school children of such school district shall be = enumerated.

"Sec. 3. The trustee or = trustees of each=20 township, town or city, shall organize the colored children into = separate=20 schools, having all the rights and privileges of other schools of the = township:=20 Provided, there are not a sufficient number within attending distance, = the=20 several districts may be consolidated and form one district. But if = there are=20 not a sufficient number within reasonable distance to be thus = consolidated, the=20 trustee or trustees shall provide such other means of education for said = children as shall use their proportion, according to numbers, of school = revenue=20 to the best advantage.

"Sec. 4. All laws = relative to=20 school matters, not inconsistent with this act, shall be deemed = applicable to=20 colored schools.

"Sec. 5. Whereas an = emergency exists=20 for the immediate taking effect of this act, the same shall be in force = from and=20 after its passage." 3 Ind. Stat. 472.

Prior = to the=20 passage of such act, the [**7] assessment of taxes for school = purposes had been confined to the property of white persons. The first = section=20 provided for the levy and collection [*333] of a tax for = school=20 purposes upon all the property within the State subject to taxation, = without=20 regard to the race or color of the owner.

The second=20 section adds to the enumeration directed in section 14 of the act of = March 6th,=20 1865, all colored children of the proper age, within the State, and = directs them=20 to be enumerated at the same time with the white children, but in a = separate=20 list or class from that in which the white children are enumerated.
The third section commands the trustees of = each township,=20 town, or city in the State to organize the colored children therein into = separate schools, with all the rights and privileges of white schools in = the=20 particular township, town, or city. But if the number of colored = children within=20 attending distance are not sufficient to organize a school, the trustees = may=20 consolidate several districts into one, for that purpose. And if the = number of=20 colored children within reasonable attending distance are not sufficient = to be=20 thus consolidated, the trustees shall provide such other = means [**8] =20 of education for such colored children as shall use their proportion, = according=20 to numbers, of the school revenue to the best advantage.
The fourth section makes all laws relative to school matters, = not=20 inconsistent with the provisions of the act, applicable to colored = schools.
It is, in the first place, claimed that the = act of May=20 13th, 1869, is in conflict with section 19 of article 4 of our = constitution,=20 which provides, that every act shall "embrace but one subject and = matters=20 properly connected therewith; which subject shall be expressed in the = title."
We think the subject of the act is common = schools, and=20 that the taxation of the property of all persons for school purposes and = the=20 enumeration of, and providing schools for, the colored children of the = State are=20 properly connected with the subject of the act. We have so frequently = placed a=20 construction upon the above quoted section that we do not deem it = necessary to=20 re-examine the question. We cite the late case of The State,=20 [*334] ex rel. Pitman, v. Tucker, 46 Ind. 355, = where many=20 of the cases are cited.

It is very plain = and obvious to=20 us, that by the supplemental act of May 13th, 1869, the legislature has=20 provided [**9] for the education of the white and colored = children of=20 the State in separate schools, and the question presented for our = decision is,=20 whether such legislation is in conflict with the constitution of this = State or=20 the Constitution of the United States.

It = is contended=20 that the act in question is repugnant to section 23 of article 1, and = section 1=20 of article 8, and they are: "Section 23. The General Assembly shall not = grant to=20 any citizen, or class of citizens, privileges or immunities which, upon = the same=20 terms, shall not equally belong to all citizens." 1 G. & H. 33.
Section 1, article 8 (1 G. & H. 48), = declares, that=20 "knowledge and learning, generally diffused throughout a community, = being=20 essential to the preservation of a free government, it shall be the duty = of the=20 General Assembly to encourage, by all suitable means, moral, = intellectual,=20 scientific, and agricultural improvement; and to provide by law for a = general=20 and uniform system of common schools, wherein tuition shall be without = charge,=20 and equally open to all."

It is important = that we=20 should settle in advance the rules by which we are to be guided in = placing a=20 construction upon the constitutional provisions above quoted.=20 [**10]

In The State v.=20 Gibson, 36 Ind. 389, we held that it was settled by very high = authority,=20 that, in placing a construction upon a written constitution or any = clause or=20 part thereof, a court should look to the history of the times, and = examine the=20 state of things existing when the constitution, or any part thereof, was = framed=20 and adopted, to ascertain the old law, the mischief, and the remedy. The = court=20 should also look to the nature and objects of the particular powers, = duties, and=20 rights in question, with all the aids and lights of contemporary = history, and=20 give to the words of each provision just such operation and force, = consistent=20 with their legitimate meaning, as will fairly secure the end proposed.=20 Kendall v. The United [*335] States, 12 = Peters,=20 524; Prigg v. The Commonwealth of Pennsylvania, 16 Peters, = 539.
In the Slaughter-House Cases, 16 = Wallace, 36, the=20 same rules were laid down and illustrated with great force by reference = to the=20 history of the times and condition of things which brought about the = recent=20 amendments to the Constitution of the United States.
Judge Cooley, in his great work on Constitutional = Limitations, on page=20 54, says: [**11]

"A cardinal = rule in=20 dealing with written instruments is that they are to receive an = unvarying=20 interpretation, and that their practical construction is to be uniform. = A=20 constitution is not to be made to mean one thing at one time, and = another at=20 some subsequent time when the circumstances may have so changed as = perhaps to=20 make a different rule in the case seem desirable. A principal share of = the=20 benefit expected from written constitutions would be lost if the rules = they=20 established were so flexible as to bend to circumstances or be modified = by=20 public opinion. It is with special reference to the varying moods of = public=20 opinion, and with a view to putting the fundamentals of government = beyond their=20 control, that these instruments are framed; and there can be no such = steady and=20 imperceptible change in their rules as inheres in the principles of the = common=20 law. Those beneficent maxims of the common law which guard person and = property=20 have grown and expanded until they mean vastly more to us than they did = to our=20 ancestors, and are more minute, particular, and pervading in their = protections;=20 and we may confidently look forward in the future to still further = modifications=20 in the direction [**12] of improvement. Public sentiment and = action=20 effect such changes, and the courts recognize them; but a court or = legislature=20 which should allow a change in public sentiment to influence it in = giving=20 construction to a written constitution not warranted by the intention of = its=20 founders, would be justly chargeable with reckless disregard of official = oath=20 and public duty; and if its course could become a precedent, these = instruments=20 would be of little avail. The violence of public passion is quite as=20 [*336] likely to be in the direction of oppression as in any = other;=20 and the necessity for bills of rights in our fundamental laws lies = mainly in the=20 danger that the legislature will be influenced by temporary excitements = and=20 passions among the people to adopt oppressive enactments. What a court = is to do,=20 therefore, is to declare the law as written, leaving it to the people = themselves=20 to make such changes as new circumstances may require. The meaning of = the=20 constitution is fixed when it is adopted, and it is not different at any = subsequent time when a court has occasion to pass upon it."
Again, the learned author says:

"The object of=20 construction, as applied to a written constitution, [**13] = is to=20 give effect to the intent of the people in adopting it. In the case of = all=20 written laws, it is the intent of the lawgiver that is to be = enforced."
Another cardinal rule of construction laid = down by this=20 author is, that the whole instrument is to be examined in placing a = construction=20 upon any portion or clause thereof. He says:

"Nor is it=20 lightly to be inferred that any portion of a written law is so ambiguous = as to=20 require extrinsic aid in its construction. Every such instrument is = adopted as a=20 whole, and a clause which, standing by itself, might seem of doubtful = import,=20 may yet be made plain by comparison with other clauses or portions of = the same=20 law. It is therefore a rule of construction, that the whole is to be = examined=20 with a view to arriving at the true intention of each part; and this Sir = Edward=20 Coke regards the most natural and genuine method of expounding a = statute. 'If=20 any section [of a law] be intricate, obscure, or doubtful, the proper = mode of=20 discovering its true meaning is by comparing it with the other sections, = and=20 finding out the sense of one clause by the words or obvious intent of = another.'=20 And in making this comparison it is not to be supposed that=20 any [**14] words have been employed without occasion, or = without=20 intent that they should have effect as part of the law. The rule = applicable here=20 is, that effect is to be given, if possible, to the whole instrument, = and to=20 every section [*337] and clause. If different portions seem = to=20 conflict, the courts must harmonize them, if practicable, and lean in = favor of a=20 construction which will render every word operative, rather than one = which may=20 make some idle and nugatory.

"This rule is = especially=20 applicable to written constitutions, in which the people will be = presumed to=20 have expressed themselves in careful and measured terms, corresponding = with the=20 immense importance of the powers delegated, leaving as little as = possible to=20 implication. It is scarcely conceivable that a case can arise where a = court=20 would be justifiable in declaring any portion of a written constitution = nugatory=20 because of ambiguity. One part may qualify another, so as to restrict = its=20 operation, or apply it otherwise than the natural construction would = require if=20 it stood by itself; but one part is not to be allowed to defeat another, = if by=20 any reasonable construction the two can be made to stand together."
In support of [**15] the above = propositions,=20 reference is made in the notes to the following authorities:
The People v. Morrell, 21 Wend. 563; = Newell v.=20 The People, 7 N.Y. 9; McKoan v. Devries, 3 Barb. = 196;=20 The People v. Blodgett, 13 Mich. 127; United States = v.=20 Fisher, 2 Cranch 358; Bosley v. Mattingly, 14 B. = Mon. 89;=20 Sturges v. Crowninshield, 4 Wheat. 122; Schooner = Paulina's=20 Cargo v. United States, 7 Cranch 52; Ogden v. = Strong, 2=20 Paine C. C. 584; United States v. Ragsdale, Hemp. 497;=20 Southwark Bank v. The Commonwealth, 26 Pa. 446; = Ingalls v.=20 Cole, 47 Me. 530; McCluskey v. Cromwell, 11 N.Y. = 593;=20 Furman v. City of New York, 5 Sandf. 16; The People = v.=20 The New York Central R. R. Co., 24 N.Y. 485; Bidwell v.=20 Whitaker, 1 Mich. 469; Alexander v. Worthington, 5 = Md. 471;=20 Cantwell v. Owens, 14 Md. 215; Case v. = Wildridge, 4=20 Ind. 51; Pitman v. Flint, 10 Pick. 504; Ludlow v.=20 Johnston, 3 Ohio 553; District Township v. The City of=20 Dubuque, 7 Iowa 262; Pattison v. Board, etc., 13 Cal. = 175;=20 Spencer v. The State, 5 Ind. 41; = Denn [**16] v.=20 Reid, 10 Pet. 524; Greencastle Township, etc., v. = Black, 5=20 Ind. 557; Stowell v. Lord Zouch, Plow. 365; Broom Leg. = Max. (5th=20 Am. ed.) 551; Co. Lit. 381, [*338] a.; Attorney=20 General v. Detroit, etc., Plank Road Co., 2 Mich. 138; The = People v. Burns, 5 Mich. 114; Manly v. The = State, 7 Md.=20 135; Parkinson v. The State, 14 Md. 184; The = Belleville, etc.,=20 R. R. Co. v. Gregory, 15 Ill. 20; Ryegate v. = Wardsboro,=20 30 Vt. 746; Brooks v. Mobile School Comm'rs, 31 Ala. 227;=20 Den v. Dubois, 1 Harrison, 285; Den v. = Schenck, 3=20 Halst. 34; Wolcott v. Wigton, 7 Ind. 44; The People = v.=20 Purdy, 2 Hill N. Y. 36; Green v. Weller, 32 Miss. = 650;=20 Warren v. Shuman, 5 Tex. 441; Quick v. White = Water=20 Township, 7 Ind. 570; Gibbons v. Ogden, 9 Wheat. 1; = Smith=20 Const. Construc., secs. 502, 503; Sedgw. Stat. Law, 229, 233, 251, and = 252.
An examination of the above authorities shows = that they=20 are in point, and fully support the doctrines announced.
It is essential to a correct interpretation of the above = provisions of=20 our constitution, in the light of the above rules of construction,=20 [**17] that we should look to the history of the times and = examine=20 the condition of things existing prior to, and at the time of, the = adoption and=20 ratification of our present state constitution, and compare the sections = in=20 question with other portions and clauses of such constitution.
We will limit our inquiry into the political condition of the = negroes=20 in this State from the organization of our state government in 1816 down = to the=20 ratification of the thirteenth, fourteenth, and fifteenth amendments to = the=20 Constitution of the United States, and incidentally to their status in = other=20 states of the Union.

Prior to the act of = May 13th,=20 1869, making taxation for common school purposes uniform, and providing = for the=20 education of the colored children of the State, 3 Ind. Stat. 472, no = provision=20 was made for their education in this State. As a race, their condition = was one=20 of marked and settled inferiority before the law, being reduced strictly = to the=20 enjoyment of the three primary rights only, and for a large portion of = time=20 legally precluded from their full exercise, viz., the right of personal=20 security, the right of personal liberty, and the right of private = property. But=20 the power of exercising [**18] these rights was practically = limited=20 in degree as compared with the exercise and [*339] enjoyment = of the=20 same rights by the white race. This was their most favorable condition = in=20 several states of the Union, they being admitted to the equal exercise = of civil=20 and political rights and privileges with the whites in but one state of = the=20 Union. In nearly one-half of the states of the Union, as a race, they = lived in a=20 state of life-long servitude, having no control of their time or = actions, no=20 right to acquire property, no lawful power to follow the promptings of = their own=20 thoughts and judgments, their lives and limbs, their minds and strength, = the=20 property and subject to the will of their masters; and notwithstanding = the=20 proclamation of emancipation, this continued to be their condition, = practically=20 and in a large degree, until after the ratification of the thirteenth = amendment=20 to the Constitution of the United States, December 18th, 1865. 2 Kent = Com., 7th=20 ed., pp. 252, 258, and note b to p. 258; Scott v. = Sandford,=20 19 How. 393; Smith v. Moody, 26 Ind. 299; Rev. Stat. 1831, = p. 375;=20 Rev. Stat. 1838, p. 418.

By sec. 7 of = article 11 of the=20 constitution of 1816, it [**19] is provided that there shall = be=20 neither slavery nor involuntary servitude in this State, otherwise than = for the=20 punishment of crimes, whereof the party shall have been duly convicted. = Rev.=20 Stat. 1838, p. 50.

Sec. 2 of article 3 = provided for an=20 enumeration of all the white male inhabitants above the age of = twenty-one years.=20 Rev. Stat. 1838, p. 38.

Sec. 1 of article 6 = limited the=20 right of suffrage to the white male citizens of the United States of the = age of=20 twenty-one, and who had resided in the State one year immediately = preceding the=20 election. Rev. Stat. 1838, p. 46.

By the = act of=20 February 10th, 1831, every such person, coming into or being brought = into this=20 State, was prohibited from residing therein, unless bond with good and=20 sufficient security, to be approved by the overseers of the poor of some = township, was given on behalf of such person, payable to the State of = Indiana,=20 in the penal sum of five hundred dollars, conditioned that such person = should=20 not, at any time, become [*340] a charge to the county in = which such=20 bond was given, nor to any other county in the State, as also for such = person's=20 good behavior, etc.

It provided penalties, = likewise,=20 for failure to comply [**20] with these provisions, = consisting of=20 hiring such person out and applying the proceeds to his benefit, and = removal=20 from the State; and by fine imposed and recovered by presentment or = indictment,=20 for harboring any such person failing to give the required bond.
This act remained upon the statute book of this State, and = continued in=20 force, for a period of over twelve years, and received the judicial = sanction of=20 the Supreme Court of the State. Rev. Stat. 1831, pp. 375, 376; Rev. = Stat. 1838,=20 pp. 418, 419; The State v. Cooper, 5 Blackf. 258; = Baptiste=20 v. The State, 5 Blackf. 283; Hickland v. The State, = 8=20 Blackf. 365.

Article 13 of the constitution = of this=20 State, which took effect on the 1st day of November, 1851, and = superseded the=20 constitution of 1816, prohibited negroes and mulattoes from coming into = or=20 settling in this State after its adoption, declared all contracts with = such=20 persons void, and made it an offence punishable by fine of not less than = ten nor=20 more than five hundred dollars for any person to employ them; and this = article=20 was submitted, as a distinct proposition, to the people of the State for = their=20 approval or disapproval, and was adopted by a vote [**21] of = one=20 hundred and nine thousand nine hundred and seventy-six to twenty-one = thousand=20 and sixty-six. 1 G. & H. 52; Dillon's Hist. Ind. 577.
Other provisions of this constitution excluded negroes and = mulattoes=20 from the elective franchise, from holding office in the State or any of = its=20 departments, from the enumeration for senatorial and representative = purposes,=20 and from participation in all of the privileges pertaining to full and = active=20 citizenship, making them a separate and distinct class of inferiors = before the=20 law, and placing them politically in a separate body, with no = constitutional=20 grant of privileges and immunities under the title of "citizen" or = "citizens,"=20 but leaving them in possession only of the three primary rights = heretofore=20 [*341] mentioned. 1 Opin. Att'y Gen. 506; 4 Opin. Att'y Gen. = 147;=20 Smith v. Moody, 26 Ind. 299.

This the=20 constitution and subsequent recognized and decided constitutional = legislation=20 clearly establish. Acts June 18th, 1852, 1 G. & H. 443; = Hatwood v.=20 The State, 18 Ind. 492; Barkshire v. The State, 7 = Ind.=20 389.

In the light of the foregoing history, = constitutional provisions, legislative acts, and judicial=20 constructions [**22] thereof, it is very plain and obvious to = us,=20 that persons of the African race were not in the minds or contemplation = of the=20 wise and thoughtful framers of our constitution, when they prepared and = agreed=20 upon the above quoted sections, or of the people of the State when they = ratified=20 and adopted the constitution containing such provisions.
In our opinion, the privileges and immunities secured by sec. = 23 of=20 article 1 were not intended for persons of the African race; for the = section=20 expressly limits the enjoyment of such privileges and immunities to = citizens,=20 and at that time negroes were neither citizens of the United States nor = of this=20 State. It was held by this court, in Sears v. The Board of=20 Commissioners of Warren County, 36 Ind. 267, that the privileges and = immunities secured by the above quoted section were intended for = citizens of=20 this State.

Nor in view of the other = provisions of our=20 constitution, and in the light of the rules of construction before = stated, can=20 it be successfully maintained that the provisions of sec. 1 of article 8 = were=20 intended for the children of the African race. It is unreasonable to = suppose=20 that the framers of the constitution, who had denied [**23] = to that=20 race the right of citizenship, of suffrage, of holding office, of = serving on=20 juries, and of testifying as witnesses in any case where a white person = was a=20 party, and had prohibited, under heavy pains and penalties, the further=20 immigration of that race into the State, intended to provide for the = education=20 of the children of that race in our common schools with the white = children of=20 the State.

The public sentiment of the = State, at that=20 time, was unfriendly to the African race and their participation in = governmental=20 [*342] affairs, and demanded their exclusion from the State; = and it=20 is not for us to say, sitting here, whether such policy was wise or = unwise, and=20 we speak of it only as a matter of history having a bearing upon the=20 construction of our constitution.

An = application of the=20 rules of construction heretofore laid down to the various provisions of = our=20 constitution will conclusively demonstrate that the provisions of the = sections=20 under examination have no application to the children and grandchildren = of the=20 appellee.

One of the cardinal rules of = construction is,=20 that courts shall give effect to the intent of the framers of the = instrument,=20 and of the people in adopting [**24] it. Then, as it is = manifest that=20 neither the framers of the constitution nor the people in adopting it = intended=20 that the children of the African race should participate in the = advantages of a=20 general and uniform system of common schools, we possess no power to = adjudge to=20 them what was not designed for them.

Another rule of=20 construction is, that in placing a construction upon one section or = clause,=20 courts are required to examine the whole instrument and to give effect, = if=20 possible, to the whole instrument; and if different portions seem to = conflict,=20 the courts must harmonize them, if practicable, and lean in favor of a=20 construction which will render every word operative, rather than one = which may=20 make some idle and nugatory. There is but one construction which will = preserve=20 the unity, harmony, and consistency of our state constitution, and that = is, to=20 hold that it was made and adopted by and for the exclusive use and = enjoyment of=20 the white race. Any other construction would convict the members of the=20 constitutional convention and the voters of the State of the grossest=20 inconsistency, absurdity, and injustice. It would be monstrous to hold = that the=20 framers of the constitution in adopting, [**25] and the = voters of=20 the State in ratifying it, intended that the common schools of the State = should=20 be open to the children of the African race, when, by the same = instrument, that=20 portion of such race as then resided in the State were denied all = political=20 rights, privileges, [*343] and immunities, and the further=20 immigration of that race into the State was prohibited by the thirteenth = article=20 of the constitution, which received the almost unanimous approval of the = voters=20 of the State.

Another important rule of = construction=20 is, that the meaning of a constitution is fixed when it is adopted, and = it is=20 not different at any subsequent time when a court has occasion to pass = upon it.=20 A constitution is inflexible and can not bend to circumstances or be = modified by=20 public opinion. It is, therefore, the duty of the court to declare the = law as it=20 is written, leaving to the people, in their sovereign capacity, to make = such=20 changes as new circumstances may require; and, in our opinion, using the = appropriate and forcible language of Judge Cooley, "a court or = legislature which=20 should allow a change in public sentiment to influence it in giving = construction=20 to a written constitution not warranted [**26] by the = intention of=20 its founders, would be justly chargeable with reckless disregard of = official=20 oath and public duty."

The views which we = have=20 expressed are greatly strengthened and enforced by the construction = which this=20 court placed upon a section of the constitution of 1816, and of an act = passed=20 while it was in force.

Section 1 of article = 9 declares=20 that "knowledge and learning, generally diffused through a community, = being=20 essential to the preservation of a free government, and spreading the=20 opportunities and advantages of education through the various parts of = the=20 country being highly conducive to this end," etc. "the General Assembly = shall,=20 from time to time, pass such laws as shall be calculated to encourage=20 intellectual, scientifical, and agricultural improvement, by allowing = rewards=20 and immunities for the promotion and improvement of arts, sciences, = commerce,=20 manufactures, and natural history; and to countenance and encourage the=20 principles of humanity, industry, and morality."
Section 2 of said article provided, that "it shall be the = duty of the=20 General Assembly, as soon as circumstances will permit, to provide by = law for a=20 general system of education [*344] = ascending [**27] in a=20 regular gradation from township schools to a state university, wherein = tuition=20 shall be gratis, and equally open to all." R. S. 1838, pp. 48, 49.
While the above constitution was in force, the = legislature=20 provided for a general common school system, the 102d section of which = act was=20 as follows:

"When any school is supported = in any degree=20 by the public school fund, or by taxation, so long as the money so = derived shall=20 be expending thereon, such school shall be open and free to all the = white=20 children resident within the district, over five and under twenty-one = years of=20 age." Chap. 15, R. S. 1843, p. 321.

In the = case of=20 Lewis v. Henley, 2 Ind. 332, this court was required to = place a=20 construction upon the above quoted section, and it was held that negro = children=20 were not entitled to admission to the schools with the white children, = and that=20 the legislature had the right, under the constitution, to exclude negro = children=20 from our public schools. It was further held that, although the negroes = might be=20 entitled to share in the funds derived from the sale of lands donated by = Congress, yet they would have to do so in separate schools, and not in = schools=20 with white children. [**28]

Both=20 constitutions provided for a general and uniform system of common = schools; both=20 provided that the tuition should be free and the schools equally open to = all.=20 Both constitutions deprived the negroes of all political rights. If the=20 legislature, under the constitution of 1816, had the right to exclude = the=20 negroes from the public schools for white children, it is difficult to = see why=20 it may not be done under the present constitution.
Having reached the true construction of the constitution of = this State,=20 as it came from the hands of its framers and received the sanction of = her=20 qualified voters, the next step is to find out the extent of its = qualification=20 or change by the Constitution of the United States.
Section 2 of article 4 of the Constitution of the United = States=20 declares, that "the citizens of each state shall be entitled = [*345] =20 to all privileges and immunities of citizens in the several states."
This section, at an early date, received a = construction in=20 the case of Corfield v. Coryell, which has ever since been = recognized and approved. It relates only to "those privileges and = immunities=20 which are fundamental," and which may all be comprehended under the=20 following [**29] heads: "Protection by the government, with = the right=20 to acquire and possess property of every kind, and to pursue and obtain=20 happiness and safety, subject, nevertheless, to such restraints as the=20 government may prescribe for the general good of the whole."
In the Slaughter-House Cases, the Supreme Court of the = United=20 States said: "Its sole purpose was to declare to the several states, = that=20 whatever those rights, as you grant or establish them to your own = citizens, or=20 as you limit or qualify, or impose restrictions on their exercise, the = same,=20 neither more nor less, shall be the measure of the rights of citizens of = other=20 states within your jurisdiction." It did not compel the state, into = which the=20 citizen of another state removed, to allow him the exercise of the same = rights=20 which he enjoyed in the state from which he removed. Corfield v.=20 Coryell, 4 Wash. C. C. 371; Slaughter-House Cases, 16 = Wall. 36,=20 77; Bradwell v. The State, 16 Wal. 130; Ward v.=20 Maryland, 12 Wal. 418; Conner v. Elliott, 18 How. = 591;=20 Brown v. State of Md., 12 Wheat. 419, 449; People = v.=20 Brady, 40 Cal. 198; Story Const., secs. 1805, 1806; Cooley Const. = Lim.=20 15, [**30] 16, 397; Potter's Dwarris on Stat. 525, 526; = Sears=20 v. The Board, etc., 36 Ind. 267; The Jeffersonville, etc., R. = R.=20 Co. v. Hendricks, 41 Ind. 48.

It = is well=20 settled by repeated decisions of the federal and state courts, that with = the=20 exception of the limitations imposed upon the powers of the states by = section 10=20 of article 1 of the Constitution of the United States, the several = states were=20 left as before the Federal Union was formed, with full power to declare = the=20 rights of their citizens, without interference from the Federal = Government.
It is a familiar rule of construction of the = Constitution=20 of the Union, that the sovereign powers vested in the state governments=20 [*346] by their respective constitutions, remain unaltered = and=20 unimpaired, except so far as they were granted to the government of the = United=20 States. In one of the states of the Union, colored children were = entitled to=20 admission into schools for white children, and to be taught with white = children,=20 and yet, if a person residing in such state should remove into some = other state,=20 where such right is denied, the right so exercised in the state from = which the=20 person removed would be lost, because it [**31] was not one = of those=20 fundamental rights which accompany the person, but a domestic regulation = exclusively within the constitutional and legislative power of each = state, and=20 to be regarded in the nature of a domestic regulation necessary for the = good of=20 the whole people, or which the good of the people of one state, in their = sovereign judgment, required to be different from the regulation in = another, as=20 best securing "the general comfort and prosperity of the state." Story = Const.,=20 secs. 1353, 1409; Cooley Const. Lim. 573, 574; 2 Kent Com. 71; 2 Op. = Att'y=20 Gen'l, 426; Commonwealth v. Alger, 7 Cush. 84; The City = of New=20 York v. Miln, 11 Pet. 139; Slaughter-House Cases, 16 = Wal. 36,=20 62; Bradwell v. The State, 16 Wal. 130; Thayer v.=20 Hedges, 22 Ind. 282; Potter's Dwarris on Stat. 352, 452, 455, = 461.
It is very plain that the tenth amendment of = the=20 Constitution of the United States cannot receive such construction as = will aid=20 the claim of the appellee. It declares, that "the powers not delegated = to the=20 United States by the Constitution, nor prohibited by it to the states, = are=20 reserved to the states respectively, or to the people;" and the power to = fix=20 the [**32] qualifications of the citizen of the state, and to = establish his rights in the state, is one of the powers expressly = reserved to=20 the state by this amendment; for there is no express limitation of the = power of=20 the states in the Federal Constitution in this respect, as it then = stood, and=20 such limitation could not exist without express mention. Rawle Const. = 84, 87;=20 Story Const., sec. 1904; Works of Webster, vol. 3, p. 322; Cooley Const. = Lim.=20 19; Federalist, 140; Slaughter-House Cases, 16 Wal. 36, 71, 72, = 73;=20 Barron v. Mayor, etc., 7 Pet. 243; Smith v. = State of=20 Md., [*347] 18 How. 71; Pervear v. The=20 Commonwealth, 5 Wal. 475; Barker v. The People, 3 Cow. = 686;=20 James v. The Commonwealth, 12 S. & R. 220; Jane = v.=20 Commonwealth, 3 Met. Ky. 18; Lincoln v. Smith, 27 = Vt. 328;=20 Warren v. Paul, 22 Ind. 276; The State, ex rel. = Lakey, v.=20 Garton, 32 Ind. 1.

That the views = hereinbefore=20 expressed correctly represent the relative powers of the federal and = state=20 governments at the close of the great civil war, and until after the=20 ratification of the amendments to the Constitution of the United States, = which=20 followed the termination [**33] of that contest, cannot, we = think, be=20 successfully controverted.

We next proceed = to determine=20 whether such amendments, or either of them, have worked a change, and, = if they=20 have, to what extent.

The thirteenth = amendment was=20 proposed by Congress on the 1st day of February, 1865, and declared by = the=20 Secretary of State to have been ratified December 18th, 1865. It = declares that=20 "neither slavery nor involuntary servitude, except as a punishment for = crime=20 whereof the party shall have been duly convicted, shall exist within the = United=20 States, or any place subject to their jurisdiction;" and "Congress shall = have=20 power to enforce this article by appropriate legislation." 3 Ind Stat. = 579.
This amendment was to prevent any question in = the future=20 as to the effect of the war and the President's proclamation of = emancipation=20 upon slavery; and its obvious purpose was to forbid all shades and = conditions of=20 African slavery. Slaughter-House Cases, 16 Wal. 36, 69.
It had no other office, and its real effect was more for the = future=20 than the present. As to the matter of social and political rights, the = African=20 was left just where section 37, article 1, of our state constitution = left him,=20 and subject [**34] to all the inconveniences and burdens = inoident to=20 his color and race, except his former one of servitude. He was a person = whose=20 place and office, in the body politic, was yet to be designated and = established.=20 He possessed no political rights, in the usual and [*348] = proper=20 sense of that term, through, or had none conferred by, this = enactment.
Following this constitutional amendment, the = civil rights=20 bill of April 9th, 1866, was enacted by Congress, the first section of = which=20 declares who are citizens of the United States, and specifies certain = rights=20 which shall be accorded to such citizens in the states and territories, = and the=20 residue is made up of pains and penalties for violation of the rights = sought to=20 be conferred, and the machinery for enforcing its provisions.
It is not worth while to enquire into the effect of this act, = or=20 whether the Federal Constitution, which made citizens of the different = states=20 citizens of the United States, could be changed by a simple = congressional=20 enactment; for it is clear, admitting it to be valid, that it does not = relate to=20 or bear upon the right claimed in this case, for it purports only to = confer upon=20 negroes and mulattoes the right, in [**35] every state and = territory,=20 to make and enforce contracts, to sue, be parties and give evidence, to = inherit,=20 purchase, lease, sell, hold, and convey real and personal property, and = the full=20 and equal benefit of all laws and proceedings for the security of person = and=20 property as enjoyed by white citizens, and subjects them to like pains = and=20 penalties. 3 Ind. Stat. 589. In this nothing is left to inference. Every = right=20 intended is specified.

The fourteenth = amendment to the=20 Federal Constitution was proposed by Congress July 16th, 1866, and = declared by=20 the Secretary of State to have been ratified July 28th, 1868. It = consists of=20 several sections, but section 1 is the only one necessary to this = examination.=20 It declares, that "all persons born or naturalized in the United States, = and=20 subject to the jurisdiction thereof, are citizens of the United States = and of=20 the state wherein they reside. No state shall make or enforce any law = which=20 shall abridge the privileges or immunities of citizens of the United = States; nor=20 shall any state deprive any person of life, liberty, or property, = without due=20 process of law, nor deny to any person within its jurisdiction the equal = protection of the laws." [**36]
[*349] This section can better be understood or = construed,=20 by dividing and considering it in four paragraphs or clauses, the last, = however,=20 being a mere re-statement of what precedes it:

First.=20 "All persons born or naturalized in the United States, and subject to = the=20 jurisdiction thereof, are citizens of the United States and of the state = wherein=20 they reside."

In the Slaughter-House = Cases, the=20 Supreme Court of the United States say, this is a declaration "that = persons may=20 be citizens of the United States without regard to their citizenship of = a=20 particular state, and it overturns the Dred Scott decision by making all = persons=20 born within the United States and subject to its jurisdiction citizens = of the=20 United States. That its main purpose was to establish the citizenship of = the=20 negro can admit of no doubt. The phrase, 'subject to its jurisdiction,' = was=20 intended to exclude from its operation children of ministers, consuls, = and=20 citizens or subjects of foreign states born within the United States." = It=20 recognizes and establishes a "distinction between citizenship of the = United=20 States and citizenship of a state." "Not only may a man be a citizen of = the=20 United States without being [**37] a citizen of a state, but = an=20 important element is necessary to convert the former into the latter. He = must=20 reside within the state to make him a citizen of it, but it is only = necessary=20 that he should be born or naturalized in the United States to be a = citizen of=20 the Union. It is quite clear, then, that there is a citizenship of the = United=20 States, and a citizenship of a state, which are distinct from each = other, and=20 which depend upon different characteristics or circumstances in the = individual."=20 Hence, a negro may be a citizen of the United States and reside without = its=20 territorial limits, or within some one of the territories; but he cannot = be a=20 citizen of a state until he becomes a bona fide resident of the = state.
Second. "No state shall make or enforce any = law which=20 shall abridge the privileges or immunities of citizens of the United = States."
This clause does not refer to citizens of the = states. It=20 [*350] embraces only citizens of the United States. It = leaves out=20 the words "citizen of the state," which is so carefully used, and used = in=20 contradistinction to citizens of the United States, in the preceding = sentence.=20 It places the privileges and immunities of citizens of = the [**38] =20 United States under the protection of the Federal Constitution, and = leaves the=20 privileges and immunities of citizens of a state under the protection of = the=20 state constitution. This is fully shown by the recent decision of the = Supreme=20 Court of the United States in the Slaughter-House Cases, 16 Wal. = 36.
Mr. Justice Miller, in delivering the opinion = of the court=20 and in speaking in reference to the clause under examination, says:
"It is a little remarkable, if this clause was = intended as=20 a protection to the citizen of a state against the legislative power of = his own=20 state, that the word citizen of the state should be left out when it is = so=20 carefully used, and used in contradistinction to citizens of the United = States,=20 in the very sentence which precedes it. It is too clear for argument = that the=20 change in phraseology was adopted understandingly and with a purpose.

"Of the privileges and immunities of the = citizen of the=20 United States, and of the privileges and immunities of the citizen of = the state,=20 and what they respectively are, we will presently consider; but we wish = to state=20 here that it is only the former which are placed by this clause under = the=20 protection of the Federal Constitution, [**39] and that the = latter,=20 whatever they may be, are not intended to have any additional protection = by this=20 paragraph of the amendment.

"If, then, = there is a=20 difference between the privileges and immunities belonging to a citizen = of the=20 United States as such, and those belonging to the citizen of the state = as such,=20 the latter must rest for their security and protection where they have=20 heretofore rested; for they are not embraced by this paragraph of the=20 amendment."

The same learned judge, in the = further=20 examination of the second clause, says:
[*351] "It would be the vainest show of learning = to attempt=20 to prove by citations of authority, that up to the adoption of the = recent=20 amendments, no claim or pretence was set up that those rights depended = on the=20 Federal Government for their existence or protection, beyond the very = few=20 express limitations which the Federal Constitution imposed upon the=20 states--such, for instance, as the prohibition against ex post = facto=20 laws, bills of attainder, and laws impairing the obligation of = contracts. But=20 with the exception of these and a few other restrictions, the entire = domain of=20 the privileges and immunities of citizens of the states, as=20 above [**40] defined, lay within the constitutional and = legislative=20 power of the states, and without that of the Federal Government. Was it = the=20 purpose of the fourteenth amendment, by the simple declaration that no = state=20 should make or enforce any law which shall abridge the privileges and = immunities=20 of citizens of the United States, to transfer the security and = protection of all=20 the civil rights which we have mentioned, from the states to the Federal = Government? And where it is declared that Congress shall have the power = to=20 enforce that article, was it intended to bring within the power of = Congress the=20 entire domain of civil rights heretofore belonging exclusively to the = states?
"All this and more must follow, if the = proposition of the=20 plaintiffs in error be sound. For not only are these rights subject to = the=20 control of Congress whenever in its discretion any of them are supposed = to be=20 abridged by state legislation, but that body may also pass laws in = advance,=20 limiting and restricting the legislative power of the states, in their = most=20 ordinary and usual functions, as in its judgment it may think proper on = all such=20 subjects. And still further, such a construction followed by the = reversal of=20 the [**41] judgments of the Supreme Court of Louisiana in = these=20 cases" (these judgments sustained the validity of the grant, by the = legislature=20 of Louisiana, of an exclusive right, guarded by certain limitations as = to price,=20 etc., to a corporation created by it, for twenty-five years, to build = and=20 maintain slaughter-houses, etc., and prohibited the right to all others, = within=20 a certain locality), [*352] "would constitute this court a = perpetual=20 censor upon all legislation of the states, on the civil rights of their = own=20 citizens, with authority to nullify such as it did not approve as = consistent=20 with those rights, as they existed at the time of the adoption of this=20 amendment.

"The argument we admit is not = always the=20 most conclusive which is drawn from the consequences urged against the = adoption=20 of a particular construction of an instrument. But when, as in the case = before=20 us, these consequences are so serious, so far-reaching and pervading, so = great a=20 departure from the structure and spirit of our institutions; when the = effect is=20 to fetter and degrade the state governments by subjecting them to the = control of=20 Congress, in the exercise of powers heretofore universally conceded to = them of=20 the [**42] most ordinary and fundamental character; when in = fact it=20 radically changes the whole theory of the relations of the state and = Federal=20 Governments to each other and of both these governments to the people; = the=20 argument has a force that is irresistible, in the absence of language = which=20 expresses such a purpose too clearly to admit of doubt. We are convinced = that no=20 such results were intended by the Congress which proposed these = amendments, nor=20 by the legislatures of the states which ratified them."
Third. "Nor shall any state deprive any person of life, = liberty, or=20 property, without due process of law."

This = clause is=20 the same contained in the fifth amendment to the Constitution of the = United=20 States, but there applied to the action of the Federal Government, and = here=20 placed as a check upon the states. But the constitution of our State = contains,=20 and perhaps those of all the states contain just such a provision, so = that it=20 expresses no new principle, but is the old rule in force since the = foundation of=20 the state governments. It prohibits the states from depriving any person = of=20 life, liberty, or property, except "in due course of legal proceedings,=20 according to those rules and forms which [**43] have been=20 established" by the state, "for the protection of private rights." = Cooley Const.=20 Lim. 356, 357; Westervelt v. Gregg, 12 N.Y. 202.
[*353] Fourth. "Nor deny to any person within its = jurisdiction the equal protection of the laws."

In=20 regard to this clause, the Supreme Court of this State, in The = State v.=20 Gibson, 36 Ind. 389, say, it "seems to have been added in the = abundance=20 of caution, for it provides in express terms what was the fair, logical, = and=20 just implication from what had preceded it, and that was, that the = persons made=20 citizens by the amendment should be protected by the laws in the same = manner,=20 and to the same extent, that white citizens were protected."
In the case of The State v. Gibson, supra, this = court was=20 called upon to place a construction upon the fourteenth amendment to the = Constitution of the United States. It was claimed in that case, that = such=20 amendment had abolished the laws of this State prohibiting the = intermarriage of=20 negroes and whites. We held that marriage was a purely domestic = institution, and=20 subject to the exclusive control of the State; that such amendment had = not=20 conferred on the Federal Government any power [**44] to = interfere=20 with the institution of marriage, and that such amendment had not = enlarged the=20 powers of the Federal Government nor diminished those of the states. We = then=20 said:

"The fourteenth amendment contains no = new grant=20 of power from the people, who are the inherent possessors of all power, = to the=20 Federal Government. It did not enlarge the powers of the Federal = Government, nor=20 diminish those of the states. The inhibitions against the states doing = certain=20 things have no force or effect. They do not prohibit the states from = doing any=20 act that they could have done without them. * * * The only effect of the = amendment under consideration was to extend the protection and blessings = of the=20 constitution and laws to a new class of persons. When they were made = citizens=20 they were as much entitled to the protection of the constitution and the = laws as=20 were the white citizens, and the states could no more deprive them of = privileges=20 and immunities than they could citizens of the white race. Citizenship = entitled=20 them to the protection of life, liberty, and property, and the=20 [*354] full and equal protection of the laws. Nor has the=20 ratification of this amendment in any manner or to any = extent [**45] =20 impaired, weakened, or taken away any of the reserved rights of the = states, as=20 they had existed and been fully recognized by every department of the = national=20 government from its creation."

What was = then intended=20 to be expressed was, that the fourteenth amendment had not delegated to = the=20 Federal Government the power to regulate and control the domestic = institutions=20 of a state. As will be hereinafter shown, it imposes some limitations = upon the=20 powers of the states as to slavery and the equal protection of the = rights of=20 citizen of the United States and of the states.

We were=20 then unaided by any judicial construction of the fourteenth amendment; = and we=20 are gratified to know that the views then expressed have been, in all=20 substantial respects, sustained by the highest judicial tribunal in this = country, and the one especially charged with the construction and = interpretation=20 of the Federal Constitution. By the solemn decision of that high court, = the=20 privileges and immunities belonging to the citizens of the states, as = such, rest=20 for their security and protection where they have heretofore rested, = with the=20 states themselves.

In The State, ex rel. = Garnes,=20 v. McCann, 21 Ohio St. 198, [**46] the Supreme Court = of that=20 state uses the following language:

"It = would seem,=20 then, that under the constitution and laws of this state, the right to = classify=20 the youth of the state for school purposes, on the basis of color, and = to assign=20 them to separate schools for education, both upon well recognized legal=20 principles and the repeated adjudications of this court, is too firmly=20 established to be now judicially disturbed.

"But it is=20 claimed that the law authorizing the classification in question = contravenes the=20 provisions of the fourteenth amendment of the Constitution of the United = States,=20 and is, therefore, abrogated thereby.

"Unquestionably=20 all doubts, wheresoever they existed, as to the citizenship of colored = persons,=20 and their right to the 'equal protection of the laws,' are settled by = this=20 amendment. [*355] But neither of these was denied to them in = this=20 state before the adoption of the amendment. At all events, the statutes=20 classifying the youth of the state for school purposes on the basis of = color,=20 and the decisions of this court in relation thereto, were not at all = based on a=20 denial that colored persons were citizens, or that they are entitled to = the=20 equal protection [**47] of the laws. It would seem, then, = that these=20 provisions of the amendment contain nothing conflicting with the statute = authorizing the classification in question, nor the decisions heretofore = made=20 touching the point in controversy in this case. Nor do we understand = that the=20 contrary is claimed by counsel in this case. But the clause relied on, = in behalf=20 of the plaintiff, is that which forbids any state to 'make or enforce = any law=20 which will abridge the privileges or immunities of citizens of the = United=20 States.'

"This involves the inquiry as to = what=20 privileges or immunities are embraced in the inhibition of this clause. = We are=20 not aware that this has been as yet judicially settled. The language of = the=20 clause, however, taken in connection with other provisions of the = amendment, and=20 of the constitution of which it forms a part, affords strong reasons for = believing that it includes only such privileges or immunities as are = derived=20 from, or recognized by, the Constitution of the United States.
"A broader interpretation opens into a field of conjecture = limitless as=20 the range of speculative theories, and might work such limitations of = the power=20 of the states to manage and regulate their [**48] local = institutions=20 and affairs as were never contemplated by the amendment.
"If this construction be correct, the clause has no = application to this=20 case, for all the privileges of the school system of this state are = derived=20 solely from the constitution and laws of the state. If the General = Assembly=20 should pass a law repealing all laws creating and regulating the system, = it can=20 not be claimed that the fourteenth amendment could be interposed to = prevent so=20 grievious an abridgment of the privileges of the citizens of the state, = for they=20 would thereby be deprived of [*356] privileges derived from = the=20 state, and not of privileges derived from the United States.
"But we need not now further discuss this point, as the true = meaning=20 and exact limits of the clause in question are not necessarily involved = in this=20 case. For, conceding that the fourteenth amendment not only provides = equal=20 securities for all, but guarantees equality of rights to the citizens of = a=20 state, as one of the privileges of citizens of the United States, it = remains to=20 be seen whether this privilege has been abridged in the case before us. = The law=20 in question surely does not attempt to deprive colored persons of=20 any [**49] rights. On the contrary, it recognizes their = right, under=20 the constitution of the state, to equal common school advantages, and = secures to=20 them their equal proportion of the school fund. It only regulates the = mode and=20 manner in which this right shall be enjoyed by all classes of persons. = The=20 regulation of this right arises from the necessity of the case. = Undoubtedly it=20 should be done in a manner to promote the best interests of all. But = this task=20 must, of necessity, be left to the wisdom and discretion of some proper=20 authority. The people have committed it to the General Assembly, and the = presumption is that it has discharged its duty in accordance with the = best=20 interests of all. At all events, the legislative action is conclusive, = unless it=20 clearly infringes the provisions of the constitution.
"At most, the fourteenth amendment only affords to colored = citizens an=20 additional guaranty of equality of rights to that already secured by the = constitution of the state.

"The question, = therefore,=20 under consideration is the same that has, as we have seen, been = heretofore=20 determined in this state, that a classification of the youth of the = state for=20 school purposes, upon any basis which does [**50] not exclude = either=20 class from equal school advantages, is no infringement of the equal = rights of=20 citizens secured by the constitution of the state.

"We=20 have seen that the law, in the case before us, works no substantial = inequality=20 of school privileges between the children of both classes in the = locality of the=20 parties. Under the [*357] lawful regulation of equal = educational=20 privileges, the children of each class are required to attend the school = provided for them, and to which they are assigned by those having the = lawful=20 official control of all.

"The plaintiff, = then, can not=20 claim that his privileges are abridged on the ground of inequality of = school=20 advantages for his children. Nor can he dictate where his children shall = be=20 instructed, or what teacher shall perform that office, without obtaining = privileges not enjoyed by white citizens. Equality of rights does not = involve=20 the necessity of educating white and colored persons in the same school, = any=20 more than it does that of educating children of both sexes in the same = school,=20 or that different grades of scholars must be kept in the same school. = Any=20 classification which preserves substantially equal school advantages is = not=20 prohibited [**51] by either the state or Federal = Constitution, nor=20 would it contravene the provisions of either. There is, then, no ground = upon=20 which the plaintiff can claim that his rights under the fourteenth = amendment=20 have been infringed."

The foregoing = opinion, having=20 been rendered since the ratification of the fourteenth amendment, is = directly in=20 point, and is entitled to great weight and consideration, coming as it = does from=20 a court distinguished for its learning and ability.

How=20 far, then, have the amendments operated to change the constitution of = Indiana or=20 imposed limitations or restrictions upon the sovereign power of the = State? We=20 answer, in the following particulars:

1. = The State=20 cannot in the future, while a member of the Federal Union, change her=20 constitution so as to create or establish slavery or involuntary = servitude,=20 except as a punishment for crimes whereof the party shall have been = convicted;=20 thus protecting the new class of citizens, i. e., negroes and = mulattoes,=20 from being again reduced to slavery.

2. The = State=20 cannot deny to, or deprive a citizen of the United States, i. e., = any=20 negro or mulatto, of, those national rights, privileges, or immunities = which=20 belong to [**52] him as such citizen.
[*358] 3. The State must recognize as its citizen = any=20 citizen of the United States, i. e., any negro or mulatto, who is = or=20 becomes a bona fide resident therein.

4. The=20 State must give to such, i. e., to such negro or mulatto, who is = or who=20 becomes a bona fide resident therein, the same rights, = privileges, and=20 immunities, secured by her constitution and laws to her other, i. = e., to=20 her white citizens.

In our opinion, such = amendments=20 have not in any other respect imposed restrictions or limitations upon = the=20 sovereign power of the State. From this it results, that there is no = limitation=20 upon the power of the State, within the limits of her own constitution, = to fix,=20 secure, and protect the rights, privileges, and immunities of her = citizens, as=20 such, of whatever race or color they may be, so as to secure her own = internal=20 peace, prosperity, and happiness.

This will = preserve in=20 their purity and vigor the structure and spirit of our complex system of = government, as it came from the hands of the great and illustrious men = who=20 achieved our independence and formed our matchless form of government. = Anterior=20 to the adoption of the Federal Constitution, [**53] the = states=20 existed as independent sovereignties, possessing supreme and absolute = power over=20 all questions of local and internal government. To the states the whole = charge=20 of interior regulation is left by the Federal Constitution; to them and = to the=20 people thereof all powers not expressly, or by necessary implication, = delegated=20 to the national government, and not prohibited to the states, are = reserved to=20 the states.

The Constitution of the United = States is=20 the bond which binds the states in one federal union. It forms and = provides the=20 agencies for the continuance and management of the federal government. = It=20 relates to and concerns matters of national import, and enables the = states,=20 represented by their federal head, as one of the independent and most = powerful=20 governments of the world, to enter into and manage its relations with = the other=20 independent powers of the earth. Under our constitution, our common = school=20 system must be general. That is, it must extend over and embrace every = portion=20 of the State.

[*359] It must be = uniform.=20 The uniformity required has reference to the mode of government and = discipline,=20 the branches of learning taught, and the qualifications as to age=20 and [**54] advancement in learning required of pupils as = conditions=20 of their admission. It does not mean that all the schools shall be of = the same=20 size and grade, or that all the branches of learning taught in one = school shall=20 be taught in all other schools, or that the qualifications as to age and = advancement, which would admit a pupil in one school, would entitle such = pupil=20 to admission into all the other schools. Uniformity will be secured when = all the=20 schools of the same grade have the same system of government and = discipline, the=20 same branches of learning taught, and the same qualifications for = admission.
The schools must be "equally open to all." = This has=20 reference to the persons who are entitled to receive instruction = therein. The=20 phrase, "equally open to all," is not to be taken in a literal sense, = for this=20 would embrace the whole people of the State, the infant, the = middle-aged, the=20 septuagenarian, and the married.

It is very = obvious,=20 that the common schools of the State are neither to be equally open to=20 everybody, nor to every child; but that they are to be equally open to a = class=20 of persons, which class and their qualifications are to be designated = and=20 prescribed by the legislature. [**55]

The=20 Federal Constitution does not provide for any general system of = education, to be=20 conducted and controlled by the national government, nor does it vest in = Congress any power to exercise a general or special supervision over the = states=20 on the subject of education. The Constitution gives to Congress the = power to=20 dispose of and make all needful rules and regulations respecting the = territories=20 and other property belonging to the United States, and by virtue of this = power=20 territorial governments are organized. It also confers on Congress the = exclusive=20 power to legislate in all cases whatever over the District of Columbia, = and by=20 virtue of this power Congress has established in such District a system = of=20 common schools. Conhas [*360] also established and = maintained=20 military and naval schools at the expense of the government.
The system of common schools in this State has its origin in, = and is=20 provided for by, the constitution and laws of this State. It is purely a = domestic institution, and is subject to the exclusive control of the = constituted=20 authorities of the State. The constitution does not provide the = machinery, nor=20 lay down its rule of government or discipline, nor = define [**56] the=20 terms and conditions of admission. It makes it the imperative duty of = the=20 legislature to provide by law the system, and imposes no limitations on = the=20 power of the legislature, except that tuition shall be free, and the = schools=20 shall be equally open to all; that is, to such classes of persons as the = legislature may, in its wisdom, determine.

There being=20 no further restriction upon the legislative power and discretion, it = necessarily=20 follows, that in providing for this system of schools, the legislature = is left=20 free to fix the qualifications of pupils to be admitted to its benefits, = as=20 respects age and capacity to learn; to classify them with reference to = age, sex,=20 advancement, and the branches of learning they are to pursue; to provide = for the=20 location and building of schoolhouses; and to designate to what schools = and in=20 what schoolhouses the different ages, sexes, and degrees of proficiency = shall be=20 assigned; for these all concern the good order and success of the = system.
It must also follow, that this policy or = framework of=20 government for that system vitally concerns and blends itself with the = internal=20 affairs of the State, with its happiness and prosperity, its peace and=20 good [**57] order, and depends upon the wisdom of the = legislature and=20 of the agencies provided by the legislature, acting under its = established rules,=20 and comes within the power possessed by every sovereign state, and is = clearly=20 without the grants or inhibitions of such amendments to the Constitution = of the=20 United States. City of New York v. Miln, 11 Pet. 139, 140; = License Tax Cases, 5 Wal. 462, 471; Lane County v. = Oregon,=20 7 Wal. 71; United States v. Dewitt, 9 Wal. 41; The=20 Collector v. Day, 11 Wal. 113, 125; The Slaughter-House=20 [*361] Cases, supra; Bartemeyer v. = Iowa, 18=20 Wal. 129; The State v. Gibson, 36 Ind. 389; The West = Chester,=20 etc., R. R. Co. v. Miles, 55 Pa. 209; Cooley Const. Lim. 572, = 574;=20 Ellis v. The State, 42 Ala. 525; Fifield v. = Close,=20 15 Mich. 505.

This system of common schools = must=20 consist of many schools in different localities or geographical = divisions; and=20 these schools may be of different grades. In some of these localities or = divisions there may be school-houses, and in others none. In some the=20 school-house or houses may not be sufficient to accommodate all, and the = revenue=20 may not be sufficient [**58] to provide for them.
In this system, there ought to be and must be a = classification of the=20 children. This classification ought to and will be with reference to = some=20 properties or characteristics common to or possessed by a certain number = out of=20 the whole; and these classes may be put into and taught in different = parts of=20 the same school, or different rooms in the same school-house, or = different=20 school-houses, as convenience and good policy may require.
This is too reasonable to admit of question; for it concerns = the=20 general good, and does not affect the quality of the privilege, but = regulates=20 the manner of its enjoyment.

This being = settled, what=20 is there to prevent the classification of children, equally entitled to = the=20 privileges of the system of common schools, with reference to difference = of race=20 or color, if the judgment of the legislature should hold such a = classification=20 to be most promotive of, or conducive to, the good order and discipline = of the=20 schools in the system, and the interest of the public?

The legislature, under our state constitution as it existed = without the=20 limitation imposed upon the sovereign power of the State by the = fourteenth=20 amendment as hereinbefore [**59] stated, had the power to = provide for=20 the education only of the white children of the State; but since its=20 ratification, no system of public schools would be general, uniform, and = equally=20 open to all which did not provide for the education of the colored = children of=20 the State.

[*362] It being = settled that the=20 legislature must provide for the education of the colored children as = well as=20 for the white children, we are required to determine whether the = legislature may=20 classify such children, by color and race, and provide for their = education in=20 separate schools, or whether they must attend the same school without = reference=20 to race or color. In our opinion, the classification of scholars, on the = basis=20 of race or color, and their education in separate schools, involve = questions of=20 domestic policy which are within the legislative discretion and control, = and do=20 not amount to an exclusion of either class. In other words, the placing = of the=20 white children of the State in one class and the negro children of the = State in=20 another class, and requiring these classes to be taught separately, = provision=20 being made for their education in the same branches, according to age, = capacity,=20 or advancement, [**60] with capable teachers, and to the = extent of=20 their pro rata share in the school revenue, does not amount to a = denial=20 of equal privileges to either, or conflict with the open character of = the system=20 required by the constitution. The system would be equally open to all. = The=20 tuition would be free. The privileges of the schools would be denied to = none.=20 The white children go to one school, or to certain of the schools in the = system=20 of common schools. The colored children go to another school, or to = certain=20 others of the schools in the system of the common schools. Or, if there = are not=20 a sufficient number of colored children within attending distance, the = several=20 districts may be consolidated and form one district. But if there are = not a=20 sufficient number within reasonable distance to be thus consolidated, = the=20 trustee or trustees shall provide such other means of education for said = children as shall use their proportion, according to number, of school = revenue=20 to the best advantage. If there be cause of complaint, the white class = has as=20 much, if not greater cause than the colored class, for the latter class = receive=20 their full share of the school revenue, although none of it may have=20 been [**61] contributed by such class; and when districts can = not be=20 consolidated so as to form a school, such class is entitled to receive = their=20 full share of the school revenue, according [*363] to = number, which=20 shall be expended for their benefit to the best advantage, a privilege = which is=20 not granted to the white class.

In our = opinion, there=20 would be as much lawful reason for complaint, by one scholar in the same = school,=20 that he could not occupy the seat of another scholar therein at the same = time=20 the latter occupied it, or by scholars in the different classes in the = same=20 school, that they were not all put in the same class, or by the scholars = in=20 different schools, that they were not all placed in one school, as there = is that=20 white and black children are placed in distinct classes and taught = separately,=20 or in separate schools. The State v. The City of = Cincinnati, 19=20 Ohio 178; Van Camp v. The Board, etc., 9 Ohio St. 406;=20 Baker v. The City of Cincinnati, 11 Ohio St. 534; The = State,=20 etc., v. McCann, 21 Ohio St. 198; Dallas v. = Fosdick, 40=20 How. Pr. 249.

It is to be noted that the = appellee, in=20 his petition for a mandate, complains only that his = children [**62] =20 and grandchildren were excluded from the school where the white children = were=20 taught. There are no allegations that there was not a sufficient number = of=20 colored children in attending distance to constitute a school, or that = the=20 trustee or trustees had failed to provide such other means of education = for said=20 children as would use their proportion, according to number, of school = revenue=20 to the best advantage. There is a general allegation that the defendants = had=20 neglected, failed, and refused to provide any school in said district, = or in any=20 adjoining district near enough for his said children and grandchildren = to attend=20 as scholars.

The question is, therefore, = squarely=20 presented, whether the children and grandchildren of the appellee were = entitled=20 to be admitted and taught in the same school with the white children of = the=20 district. The legislature has provided that a separate school shall be = provided=20 in each district for the education of the colored children therein, = where there=20 is a sufficient number of colored children, and where there is a = deficiency of=20 colored children to form one district, several districts shall be = consolidated.=20 But if separate schools can not be provided for [**63] the = colored=20 children on account of the smallness [*364] of the number of = such=20 children, then, such other provision is to be made by the trustee for = their=20 education as the means in his hands will enable him to do.
The legislature has not pointed out or defined what other = means shall=20 be provided. There being no averment that the trustee has failed to = provide for=20 the education of the children and grandchildren of the appellee, outside = of the=20 school for white children, no question arises as to what would be a = compliance=20 with such requirement. But if such allegation had been made, it would = not have=20 entitled the children and grandchildren of appellee to admission into = the white=20 schools, because the legislature has not provided for the admission of = colored=20 children into the same schools with the white children, in any = contingency; and=20 even if, for the sake of the argument, we were to concede that colored = children=20 are, under and by force of the fourteenth amendment, so entitled, the = courts can=20 not, in the absence of legislative authority, confer that right upon = them. The=20 legislature has declared that when schools can not be provided for the = colored=20 children, the trustee shall provide [**64] such other means = for their=20 education as will use up their full share, according to number, of the = school=20 revenue. If the trustee fails in the discharge of this duty, he may be = compelled=20 by mandate to discharge the duty imposed upon him by law.
The action of Congress, at the same session at which the = fourteenth=20 amendment was proposed to the states, and at a session subsequent to the = date of=20 its ratification, is worthy of consideration as evincing the concurrent = and=20 after-matured conviction of that body that there was nothing whatever in = the=20 amendment which prevented Congress from separating the white and colored = races,=20 and placing them, as classes, in different schools, and that such = separation was=20 highly proper and conducive to the well-being of the races, and = calculated to=20 secure the peace, harmony, and welfare of the public; and if no = obligation was=20 expected to be or was imposed upon Congress by the amendment, to place = the two=20 races and colors in the same school, with what show of reason can it be=20 pretended [*365] that it has such a compelling power upon = the=20 sovereign and independent states forming the Federal Union?
We refer to the legislation of Congress relative to=20 schools [**65] in the District of Columbia, at the first = session of=20 the Thirty-Ninth Congress, and the third session of the Forty-Second=20 Congress.

On the 23d day of July, 1866, the = act of=20 Congress, entitled "an act relating to public schools in the District of = Columbia," took effect. It requires the cities of Washington and = Georgetown to=20 pay over to the trustees of colored schools of said cities such a = proportionate=20 part of all moneys received or expended for school or educational = purposes in=20 said cities, including the cost of sites, buildings, improvements, = furniture,=20 and books, and all other expenditures on account of schools, as the = colored=20 children between the ages of six and seventeen years, in the respective = cities,=20 bear to the whole number of children, white and colored, between the = same ages.=20 Acts sess. 1, 39th Cong. 222.

This was = followed at the=20 same session of Congress by an act, entitled "an act donating certain = lots in=20 the city of Washington for schools for colored children in the District = of=20 Columbia," approved July 28th, 1866, which authorized and required the=20 Commissioner of Public Buildings to convey certain described lots, in = the city=20 of Washington, which belonged to the United [**66] States, to = the=20 trustees for colored schools for the cities of Washington and Georgetown = in said=20 District, for the sole use of schools for colored children in that = District; the=20 said lots having been designated and set apart by the Secretary of the = Interior=20 to be used for colored schools; and the said lots whenever converted to = any=20 other use to revert to the United States. Acts sess. 1, 39th Cong. = 354.
At its 42d session an act was passed, entitled = "an act to=20 amend an act entitled 'An act governing the colored schools of the = District of=20 Columbia,'" approved March 3d, 1873, which fixed the number of the board = of=20 trustees of schools for colored children in the District of Columbia, = their mode=20 of [*366] appointment, their duties, etc., and authorizes = the=20 Governor of the District to appoint a superintendent of schools for = colored=20 children, who is to receive a salary of twenty-five hundred dollars = annually,=20 for his services, etc., and directs the proportion of school money then = due, or=20 afterward to become due, to the board of trustees of colored schools = from the=20 cities of Washington and Georgetown, to be paid to the treasurer of said = board,=20 and not to the trustees, as provided in the [**67] act of = July 23d,=20 1866. Acts sess. 3, 42d Cong. 260.

This = legislation of=20 Congress continues in force, at the present time, as a legislative = construction=20 of the fourteenth amendment, and as a legislative declaration of what = was=20 thought to be lawful, proper, and expedient under such amendment, by the = same=20 body that proposed such amendment to the states for their approval and=20 ratification.

We are very clearly of the = opinion that=20 the act of May 13th, 1869, is constitutional, and that while it remains = in force=20 colored children are not entitled to admission into the common schools = which are=20 provided for the education of the white children.

In=20 our opinion, the court below erred in affirming the action of the court = in=20 special term; and the judgment is reversed, with costs, and the cause = remanded=20 to the court below, with directions to that court to overrule the = judgment of=20 the court in special term in overruling the demurrer to the petition for = a=20 mandate.

DISSENTBY: Osborn
DISSENT: Osborn, J.--I am inclined to think that the = allegations=20 in the complaint are not sufficient to entitle the appellee to a = mandate, and=20 that the judgment of the court below ought to be reversed. But there is = very=20 much in the [**68] foregoing opinion in which I do not = concur.
If I desired to do so, I could not, during the = short time=20 that I am to remain in my present position, properly and satisfactorily = consider=20 the questions discussed, and must therefore content myself with this = qualified=20 dissent.

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