The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1874-12-01

whether the children and grandchildren OF the
appellee were entitled TO he admitted and taught
in the same school with the white children OF
the district. The legislature has provided NAT
a separate school shs be provided in each dis
trict Tor the education OF the colored children
therein, where there is a Sufficient NUMBER OF
eoiored childres; and N %hrdTe mere so form
one district, several districts shall be consoI-
dated. But If separate schools can not be pro-
v.ded for the colored children on account OF the
smallness Of the number OF such children, then,
such otner provision is 10 be made by the uus-
tee for their education as the means in his hands
will enable him 10 90; Inc leglsla1uIe mas not
pointed out or defined what other means Shait
be provided. There being no averment MAJ tne
the children and grandchildren OF the appellee
outside of the school for white children, no
question arises as TO what soul DC a comPn-
apcs wi h such requirement. But IL such alle-
CATION had been made, it would not have enl-
tied the children and grandchildren OF Appellee
10 admission into the white schools. because, the
legislature has not provided tor the admission OF
colored children into the same schools with the,
white children, in any contingency; and
even If, for the sake . the we were TO
conc de that colored children are under ana py
force OF the 18th amendment so entitled, the
courts can not, in the absence of legislative au-
thority, G infer that right upon them. The legis-
provided for the colOIed children, the trustee
shall provide such Other means for their educa-
ton as viii use up their InI snare aGeorqrng go
fails in the discharge OF this duty, he may be
compelled by mandate 10 discharge the duty
imposed upon him Dy law.
THE ACTION OF CONGRESS.
The action of Congress at the same session at
which the 18th amendment was proposed to the
states, and at a session subsequent to the date of
its ratification, is worthy of consideration as
evincing the concurrent and after matured con-
yiction of that body, that there was nothing
whatever in the amendment which prevented
Congress from separating the white and
colored races, and the placing them. as classes,
in different schools. aud that such separation
was highly proper, and conducive to the well
aeing of the races, aud calculated to secure the
peace. harmony and welfare of the public; and
If no obligatioo was expected 10 pe, or was
place the two races ana cOlors in the same school,
with what show Of reason can IL De PRETENDED
that it has such a compelling power upon the
sovereign and independent states forming the
Federal Union.
to the schools in the District of Columbia, at the
first session of the 39tb congress, and the third
session of 42d congress: -
On the 23d day Of July, 1906, the act ofCongreSS,
entitled, " An act relating 10 public schools in
the District OF took effect. III requires
the cities of Washington and Georgetown 10 pay
over to the trustees of cOlOred schools OF said
cities, such a prOpOrtiOnate part OF all moneys
received or expended for school or educational
purnoSes in said cities. Including the cost of sites,
buildings, improvements, furniture ana DOCKS,
aud all other expenditures on account OF schools,
as the colored children between the ages OF SIX
aud seventeen years. in the respective cities,
bear TO the whole number o. children, white and
colored, between the same ages. Acts sess. lis
This was followed, at the same session of Con-
gress, BY an act, entitled " An act donating GER
lain lots in the city of Washington for schools
fOl cOlored children in the District OF
approved July ., 1856, which author zed and re-
Quired the Commissioners of public buildings To
convey certain described lots, in the City OF
Washington, which belonged to the United
STATES, to the trustees for colored schools Tor the
cities of Washington and Georgetown in SAID
District, for the sole use Of schools Tor col
ored children in that district; the SAID
the secretary or the interior 10 be used 1OT col
ored schools; ard the said lots, whenever con,
verted TO any other use, to revert TO the United
States. Acts seSs /, 80 Cong. So4.
At its I'D session an act was passed enuuleu,
"An act TO amend an act entitled, An act gov
erning the colored schools Of the District OF co.
umbia, ." approved March 3, 1873, which fixes the
number of the board of trustees of schools for
cOlored children in the District of
their mode of appointment, their duties, etc,
and authorizes the governor of the District 10
appoint a superintendent OF schools Tor oored
children, VIII Is to receive a salary of S2,5OO an
nuaIly, for his services, etc, and directs the pro-
portion of ,chOol money then due, or afterward
to become due to the board of trustees of colored
schools from the cities OF washington ano
Georgetown TO be paid to the treasurer OF SAID
boa d, and not to the trustees as provided In The
act of July D. 1866. Acts seS. 3. AZ Cong. 26O.
This legislation of Congress continues In force
at the present time as legislative construction OF
the fourteenth amendment, and as a legislative
declaration of what was thought 10 be lawful,
proper and expedient under such amendment,
by the same body which proposed such amend
cation.
We are very clearly of the opinion that the
act of May Is, 1859, is constitutional, and that
while il remains in force, colored children are
not entitled to admission into the common
schools which are provided for the education OF
the white children.
In our opinion the court below erred in az
frming the action of the court in special term,
and the Judgement is reversed with costs, and
the cause is remanded to the court below with
directions to that court to override the judg-
ment of the court in special term, in over
ruling the demurrer to the petition for a man.
date.
A VOICE.
OSBORN, J.:
lam inclined to think that the allegations in
the complaint are not sufficient to entitle the APP
pellee to a N mandate, and that the judgment of
The court below ought to be reversed. But there
is very much in the foregoing opinion in which
do not concur.
If 4 desired to do so, L could not, during the
short time that i am to remain in my present
position, properly ana satisfactorily consider
the question discussed, and must, therefore,