Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1875-09-19
~yIIXED~ SCHOOLS.
An Important Decision by Brook Ism
Judge-A COlOrcd Boy Refused
Admittancc To ~ Public
SchOoi-CiyiI Rights
Defined.

J.
= Taxpayer Of Brooklyn, applied % have
his con admitted tu public school No. So,
IN the eastern district 0f that city The
principal oi the school, Mr.. W. A.
Welcb, by direction Of the board Of
education, refused 70 permit the boy
johnson ID attend the school. Rev. Nj.
Johnson J7en applied Tor HdEddmJls
TO comPe' Mr.. Welch and the board II
educstiCa permit his ron 10 attehd the
school il question. The case was argued
lAst Monday, aud yesterday Judge Gill
bert, before whom the arguments Of
counsel were made, rendered the follow
ing important decision, in which lie de-
mics the application for a BluHdGmits.
The People ex rel. william r. johnson w.
Wheeler A. WeIcn-GllUeFt, Judge.
The question which ! have to decide
il whether the Telat0r, who il q cClOTed
citizen, has legal right to compel the
admission Of his son as pupil into the
common or public scnoCl Of the district
in which he resides IN the city Of Brook
lyn, instead Of submitting 10 The regula-
ton of the board Of education, requiring
that he shall attend O separate school
provided by said board !gT cOiUTed chill
dTeD Common schools are q public
charity. The benefits conferred 10y them
hLe q lIEE KIT lIhu1 Al4t tNthAt. NbI5c~
quently the State, ike every other do
nor, may prescribe in what manner aGu
upon what terms and conditions the
gift may be enjoyed. The beneficisries
acquire no legal right IN the thing given
except such as the State has bestowed
by means Of It's legislative acts, not
withstsnding the gin is maintained in
part by funds annually raised by taxa
ton. In short, participation in the priv
ileges and benefits Of common schools
forms no pant OF that body Of political
and civil rights which are pro tecied
aud secured by the fundamental Al law.
Section / Of article IA Cf tue corst tut on
Of the United stat s, commonly cal eu
tie f,uItesutn amendment, there fore
has no application to ire case. Ne theF
the constitution nor the blli of rights of
this State contains any provision rclat
ing TO this subject. The Que StIOu tuTuS
wholly upon the effect OF acts of tie
legislature. Prior 10 the civil rights act
Of 1873 which viii he quoted presently,
the power which has been exercised Uy
the board of education in this case was
expressly authorized by law. BY an act
ID TeOTgaUiZe and regulate the common
schools and the board Of educat on in
the city OF Brooklyn, passed April 4
1850 ii was pTOviCe1 that the board Of
education shall have the entire charge
snd direction of all TIE public schools Of
said city," ana may "deiine the duties
OF its officers and committees, and pre-
scribe such rules and regulations for
instruction and discipline in the said |
public schools as are not iucOrS stelt |
with the laws Of the State That act /
also conferred upon the board Cf educs-
ton power 10 organize and establish |
schools for cOlOred chiid!en.n and re- |
qUesled the beard to "8dopt the Lecessa-
~ III es for the gOvs rnment of thesame |
(Lsws 1850, PIP. 23s This ststute has
undergone seveJaj amendments, the last I
one having been passed in 1867, but ID |
none Of them was any change made Of
the powers or duties Cf the board Cf ed |
ucation 10 respect 10 schools for colOred |
children. In the act TO amend the char /
ter Cf the city Of Bro klyE, passed June |
., 1873, it is provided as fJliows: |
"Ihere shall be.a department Of public .
instruction, which shall he under the .
control If board Of education, ard |
al the provisions Of Law relating 10 the |
pre- sent board Of educat on Of the city Cfl
Brooklyn shall apply thereto, except 50
much ss relates 10 the appointment Of /
members thereof, which snail be made |
IN the following maunerN (LgWS 1873, |
PIP. 1862, 1T. Is, sec. H. And by section /
% CT title IS Of this act, slI acts and parts |
of acts inconsistent with tBe provisions |
thereof are Iepesled. Such being the
legislation on this subject, il appears to .
be quite clear that the relst1r hes not !
teen deprived Cf any 'egRl right by the .
regulation Cf which he complains, un-
less such regulation is in violation Of the |
"act TO provide for the protection Of ct |
izeDs in their public and civil rights" |
passed April 8, 1873. (Laws Of 1873, |
PIP 303.) Thst act is as follows:
Section l. No citizen of this State |
shall, by reason OF race, color or pre- |
viCus condition Of seTviiuie, be except |
ed or excluded from the full and equal |
enjoyment Of any accommodation, ad- |
vantage, facility or privilege furnished |
by trustees, commits /
siOnors, superintendents teachers and /
other officers Of common schools and /
public institutions Of learning.
Sec. =. Making the violation OF the |
first section a misdelHeanOT, and pre- |
scribes the punishment therefor.
Sec. 3. Discrimination against any /
citizen on account Of color by the use Of
the word "White" or any ether term In |
any law, statute, ordinance, or regulg- /
ton now existing in this State, is here |
by repealed and annulled.
1t will be observed that this act was |
passed more than two months before the |
act to amend the charter to which l |
have referred, and that the latter act re-
enacted all the provisions OF law relating |
to the power and duties Of the board OF |
education, and repealed al acts and f.
parts OF acts inconsistent there with.
That the effect Cf the charter amend
ment WAS to re. enact these statutes, !
think, is manifest. The third section
Of the civil rights act did rot repeal
those statutes. 1t only modified the
operation of them, leaving the statues
themselves otherwise in fuil force. Then
the act amending the charter explicitly
continues there in full force. ItwOuld be
hardly just 10 impute TO the Legislature
the intention OF taking away any Ct the
powers of the board OF education by
means Of the civil rights sets and OF re-
investing them with the same powers
by the act amending the charter, which
was passed at the same session. 1t would
be more reasonable to conclude that the
Legislature did not deem the power TO
establish schools for COlored children,
and to prescribe regulations therefor, an
OF the principle embodied
in the civil rights act. IT, however, the
latter statute conferred upon c0lOred cit
izeIs rights inconsistent with the au-
taOrity granted 10 the board in respect
10 schools for colored children to that
extent, such statute has been TepesleU
by 3Z9 OF title nineteen Of the act Oi
june %, 1878, 20 emegd the charter.
But in truth, / am unable - rargeive
- 4.lHrr
statutes Ii is said that the tlird sec
ton OF the civil rights act prohibits dis
between wL auu cOlOIed
This is not 90, and such pro-
hibition would be eb urd, for they can
not he mentioned GithOut such discTim-
ination. This section merely Tepeals
the language of any law, statute, G-di.
nance, OF regulation existing al the /
time OF it's passage, which EuthOT- 4
izsd discrimination against, that is .
to say, to the injury or prejudice /
Of any citizen on account Ct color. It Is 4
only right upon the suppOsition that the 4
statutes authorizing schools for cOl9Ted /
children and the regulation aud ciscip- /
line thereof discriminate against col /
ored citizens that any Inconsistency |
arises between this section and those +,
statutes and regulations. But it would, /
as il seems TO me, be unreasonable TO |
say that separation Of wnitC ard /
black races ioT more efficient admins
tration Of the c0EDon schools is 4
necessarily 3 discrimination against 1
eitheT-quIts IS much go - % hOiG r I.
such 3 d,sori UlDstiOu may be inferred I
against either boys OF girls fIOm q Ike (
separation OF the sexes. For sught that /.
appears in the papers before me, il may /.
be highly conducive to the welfare Of
the FelAtoT's son that ke should attend F.
the school established fSr colOTrd chii- I.
dren. II 30, there has been No discrim- |
ination against him, notwithstanding 1
he msy prefer his son should be taught |
along with the white children. His (
preference weighs nothing against a
regulation Of the board OF elu-
cation lawfully made. It is
quite foreign 20 the objs and purposes
OF the leg gEistiOn respecting common .
schools, to create channels cf Gociei in
tercourse, OF 10 allow the wishes Of in I
dividusl parents 10 interfere with regula- /
ti0ns for the conduct Of the schools. The .
power to make regulations is essential F.
not only 10 the proper administration CT
the system, but TO the welfare OF the pu-
nils, white as well as black, and il Is the
duty Of the court TO uphold sll such regu-
lations honestly made, when they do not
impair OF subVeTt any legal right
regulation which requires colOred chill l
dren 70 ait end the schools specially pro- 1
vided for them has no such effect. As .
suming the civil rights act 70 be in full .