The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1874-12-01
Judge Buskirk's Decision.

Judge Buskirk's Decision.
A great part of the Sentinel's space to-day
is taken up with the opinion delivered by
the Supreme Court of Indiana yesterday. in
the case of Carey Carter against the schoo
authorities of District No. 2, of Lawrence
township in this county. This case involved
the much vexed question in regard to the
constitutionality of any state Law providing
separate schools for white and colored
children. The opinion of the court was
written by Judge Buskirk, and it may be
described as a marvel of close, hard argu-
ment, illustrated by every variety of legal
learning. The decision of the court was
unanimous, Judge Osborne agreeing in the
reversal of the ruling of the inferior
court, althou b., non-concurring in much of
the opinion delivered. 1t is probable hat the
question will be brought before the Supreme
Court of the United States for a final review.
The statement of facts in the case is very
simple. Carey Carter, living in District No. 2,
of Lawrence township, and having no school
for colored children within reach, claims
the right to send his children and grand
children, who are of full negro blood, to the
district school provided for white children.
His position was sustained by the Superior
Court of Marion county at its SPECIAL and
| general terms, and their decisions are now
reversed on appeal by the school authorities
to the highest court of the state. The
complainant, it will be observed, did not
ask for the remedy supplied by the state
law in such cases, hut boldly chose to test
the constitutionality of its provisions.
The school law of March 9th, 1865, neither
taxed negroes or mulattoes for school pur-
poses, nor made any provisions for the edu-
cation of their children. 1t was based on
old narrow prejudices. After the r~atifca-
ton of the fourteenth amendment to the
constitution of the United States, however,
a new law was passed May 18th, 1869, pro-
viding as follows:
SECTION L. Be it enacted by the general as
Sembly of the state of Indiana, That in assessing
and collecting taxes for school purposes under
existing laws, all property, real and personal,
poses, shall be taxed for the support of common
schools without regard to the race or color of the
owner of the property.
regard TO race or color, shall hereafter be in
cluded in the enumeration of the children of the
respective school distric s, townships, towns and
cities OF this state for school purposes; but in
making such enumeration the officers charged,
by law, with that duty, shall enumerate the col
ored children OF proper ace, who NAV reside In
list from that in which the other school cnildIen
of such district shall be enumerated.
SEC. 8. The trustee or trustees of each town.
ship, town, or city shall organize the colored
rights and privileges of other schools of the
township: Provided, There are not a sufficient
number within attending distance, the several
districts may be consolidated and form one dis
trict. But III there are not a sufficient number
within reasonable distance 10 be thus %consoli-
dated, the trustee or trustees shall provide such
other means of education for said children as
shall use their proportion, according to number,
of school revenue to the best advantage.
SEC. 4. All laws relative to school matters, not
Inconsistent with this act shall be deemed ap-
plicabie to colored schools.
If this law is consistent with the constitu-
ton of the state and with the constitution
of the United States, then the case of the
complainant falls to the ground as a matter
of course.
Tn court first devoted itselfto testing the
SOL of the law with the constitution
of the state. The sections supposed to be
inconsistent with tie law are thus given:
1t is commended that the act in question is re-
pugnant to section 23 OF article /, and section ]
of article 8, and they are: section %. The Gem
eral Assembly shall not grant to any citizen, or
class of citizens, privileges or immunitles which,
upon the same terms, snail not equally belong
" All CltlLcnS. Il VI. H. D.. 4
Section L. article VIII. q q. & H 4S), declares,
that and learning, generally ditused
throughout a community. being essential 10 the
preservation OF a free government, it shall be
the duty OF the general Assembly TO encourage
by all suitable means, moral, intellectual, scien-
tidc and agricultural Improvement, and TO pro-
vide by law for q general and uniform system
of common schools, wherein tuition shall be
without charge, and equally open TO all.
Laying down and illustrating by various
citations the rules of Interpretation for writ
ten instruments, the court proceeds to apply |
them in the discussion of the constitutional
ity of the law of May ID, 1869. And first,
the court holds that, applying the funda-
mental principle that the spirit OF the age in
which a document is composed and the pur-
poses of it's authors must be taken into ac-
count in interpreting It's meaning, it will
appear that the sections of the state consti-
tuition quoted can not refer to the negroes,
as al the date OF the adop-
ton of that instrument the ne
gro was considered al inferior being,
and was subject to various legal pains and
disabilities. lie MAD then only ;hzce funda-