The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1899-04-28
DECISIONS BY HIGHER COURTS
MCPHERSON COUNTY SCHOOL CASE
SENT BACK For RETRI,I..
Court nj Appeals Gnve No Decision ne
10 the Point M Issuc--otber
Cases.

Galveston. Texas, ApIil o. The court
Of civil appeals today handed down its
decision in the case Of j. j. Rurrell 81 al
VS.. c. w. Blanchard. from jefferson coun-
ty. This is a suit wherein blanchard
sought to have his children registered for
admission to the white schools This the
school trustees refused to DO, holding that
The children are "caored" within the
meaning Of the law, being descendants Of
the African race. Blanchard squsrely de-
nied the truth OF the assertion, He
brought suit for man6smus to compel the
turstees TO register his children for ad-
mission to the white schools. The case
came to the court Of appeals on appeal
from Judgment awarding the writ but
without any testimony having been taken,
The trustees in their motion for new
trial contended that mandamus did not
lie. as their acts as school trustees were
now renewable by the court OF law; that
the plaintiffs remedy lay in appeal to the
county judge, then 10 the State superin-
tendent of education and lastly 10 the
State beard of education; that such APP
sustained. The judgment is reversed and
remanded because OF defects In the petit
ton. partly because IL falls to show as
in affirmative matter that the appeals
mentioned had been taken. y great deal
of interest has been taken in the case in
Jefferson county, but the main point In the
case Is not decided, because the case has
not been properly presented The opinion
follows.
-rL i,,ac,,,opt apnnalod from awarding
the mandamus prayed for. was based sole
ly upon the allegations Of sppelloe's
amended original petition, fled June l,
1898, appellants answer to same having
been stricken out in motion. While II Is
true that the writ should issue upon the
sworn allegations OF the complainant
when they are sufficient and met only BY
general denial lSsnsom vs.. Mercer, bi
Tex 1881, 1t is true also that such allie
cations must include every fact essential
TO Justify the court in applying this eX-
traordinary remedy. Cullen VS.. Latimor,
4 Tex $780, Arberry vs. Beavers. Tex,
473-4D No exceptions were taken to the
petition. but In the case last cited II IS
held that the absence ot exceptions does
not authorize the granting OF the witt
when the petition is not sufficiently spe-
cific and positive In it's avermepis.
The language OF tho court IS peculiarly
appropriate here THE omission Of pub
lie officer TO interpnse those matters 81
defense which he might have interpreted
VIII NOT authorize the awarding OF man
damus against him 10 enfore the doing Of
acts involving the interests Of the public.
and in the performance Of which the ofn-
Ger may be less interested than others
who arc not. and from the nature al the
case can not be, made parties to the pro-
ceeding and enabled 10 assert their
rights"
This present action was begun in octo-
Der, 1897, TO compel the defendants, the
school trustees OF district No. s, OF Jeffer-
son county, 70 enroll aDpellee's children
alleged 10 be white, IN the scholastic CEN
sus OF white children for that district, tho
petition alleging that such trustees had
enrolled them among the oolored children
OF that district; and to compel the other
defendant. the county Judge OF Jefferson
county. to apportion the school fund ae-
cordingly. and 10 recognize the right OF
such children to the privileges OF the
school taught for tho white children
The cause remained undisposed Of until
June q. 1898, when the judgment appealed
from was rendered upon the amended Pc
titlon filed Junsl 1895. II grants the relief
prayer for against all OF the deiendants
and requires them 10 make up the school
census for the year 1898 and the following
years accordingly.
fatal objection to the judgment Is
that 1t does not follow the law 10 force
by which the taking Of the census for
1898 and 1899 is regulated. The act o.
1897 tsayles' Statutes, Arts Se6i-Ss7o)
made It the duty Of tho county judge 70
appoint a person. either one Of the trns-
tees or other suitable person, called the
census trustee, 10 take the census "
does not appear from the petition that any
such person Is among the defendants ana
consequently there Ia no showing mace ot
any duty incumbent on any Of them 10 10
the act required By the writ The eensui
when taken Is 70 be returned to the county