People, ex rel. King v. Gallagher

The relator applied to the court below at a Special Term of the City Court of Brooklyn for a writ of mandamus against the respondent, then the principal of public school FTo. 5 of that city, after a refusal, to compel him to admit her to the privileges of a pupil at such school, which application was denied. This appeal is brought from the affirmance of such decision by the General Term of that court.

The relator is a colored female about twelve years of age, residing in public school district No. 5, of the city of Brooklyn, and would be entitled to attend'that school but for the resulations of its board of education. By such regulations, schools for the exclusive use of its colored population of equal grade and educational advantages with its other schools were established at convenient and accessible points, and the colored

These schools have been presumably established and conducted for a period of years, and their adaptation to the accomplishment of the most efficient purposes of education has been subjected to the test of actual experiment and trial without any claim being made but that the system adopted has contributed to the best interests of both classes. The relator, however, complains, not but that she is receiving the highest educational advantages that the city is capable of giving her, but that she is not receiving those facilities at the precise place which would be the most gratifying to her feelings.

The question broadly stated presented by this appeal is whether the school authorities of that city have the right to classify the pupils in such schools in the administration of their authority to regulate the methods of education pursued therein, or whether the provisions of the Constitution of the United States require that each person attending such school, shall, without regard to sex, color or age, be awarded upon demand the same privileges in the same places and under the same circumstances as those enjoyed by any other scholar therein.

Such school authorities have determined, in the exercise of their discretion, that the interests of education may be best promoted by the instruction of scholars of different races in separate schools ; and the question is now presented whether they are debarred by the law of the land from adopting those methods which in their judgment are the wisest and most efficient to accomplish the purpose intended.

Under our common school system its supervising authorities are necessarily invested with the exclusive right of determining all such questions as pertain to "the exercise of the discretionary powers conferred upon them, and the natural and legal presumption in favor of the conscientious performance of official duty requires us to assume, in the absence of any evidence to

That our common school system should he administered to the best advantage for all interests the most casual reflection as well as the uniform practice in educational institutions shows that its school authorities should be vested with large discretionary power in arranging and classifying the various departments of public instruction, to adapt them to the diversified capacity, disposition and needs of the numerous persons they are required to govern and instruct, and any arbitrary interference with the exercise of such discretion, it is obvious, must be productive of injury to the cause of education.

It would be unfortunate if it should be found that any imperative rule of law prevents those who are charged with the management of the common schools of the State, from adopting such arrangements for instruction as their experience had shown to be adapted to the highest educational interests of the people. Upon referring to the various statutes on the subject, we find that the regulations referred to are fully authorized by the laws of this State relating to the management and control of its public common schools. Section 1 of title 10 of chapter 555 of the Laws of 1864 specially provides for the establishment of separate schools for the education of. the colored race, in all of the cities and villages of the State, wherever the school authorities of such city or village,may deem it expedient to do so. The act containing this provision has been, since its enactment, frequently before the legislature for amendment, and the provision in question has apparently been frequently approved by them, and now remains unchanged. The system of authorizing the education of the two races separately has been for many years the settled policy of all departments of the State government, and it is believed obtains very generally in the States of the Union.

The common schools of Brooklyn are organized and conducted under a special act relating to that city, contained in chapter 143 of the Laws of 1850, which confers upon the board of education of such city “ the entire charge and

The powers conferred upon the board of education by this act were, by section 1, title 16, chapter 863 of the Laws of 1873, made applicable to the reorganized department of public institutions for such city, created by said act.

This law has, therefore, been in existence for over thirty years, and its operation and effect have hitherto been found unobjectionable and.apparently satisfactory to all parties. It thereby appears that the board of education of Brooklyn possesses full legislative authority, in the exercise of its discretionary powers, to maintain separate schools for the education of white and colored children in that city, and the consequent power to render effectual, by the exclusion of one class from the schools designed for the other, of the discretion in regard to that subject which is conferred upon them by the statute. All of the powers necessary to accomplish the object which the legislature had in view in authorizing separate places of education for individuals of different color must be intended to have been granted when the authority to establish such schools was conferred.

The mere right of establishing such separate schools, stripped of the power of determining the persons who might or might not attend them, would be a barren power, productive of no beneficial result, and destructive of the effect of the legislation referred to.

Keither is there any force in the claim made by the relator, that the act excluding her from common school No. 5 was

Having seen that the action of the respondent under the authority of the board of education, in excluding the relator from the school for white children, was justified by the statute of this State, it remains only to inquire whether such statutes have been repealed by the legislature, or annulled by the paramount authority of the Constitution of the United States. It is claimed by the counsel for the relator that these statutes have been abrogated by the adoption of the fourteenth amendment to the Federal Constitution, which took effect in July, 1868. The determination of this appeal depends mainly upon the effect to be given to the provisions of this amendment. It reads as follows: “ All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. Ho State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” On the 20th day of March, 1870, a further amendment to the Federal Constitution was adopted, which provided that “ the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.”-

The argument of the appellant’s counsel is to the effect that the fourteenth amendment, under the laws of this State, giving equal privileges in its common schools to every citizen, confers upon the relator not only the right of equal educa

The history of this amendment is familiar to all, and for all of the purposes of this argument may be briefly summarized. At the time of its adoption the colored race had been recently-emancipated from a condition of servitude and made citizens of the States. It was apprehended that in some, if not all, of the States of the Union, feelings of antipathy between the races would cause the dominant race, by unfriendly legislation, to abridge the rights of the other, and deny to them equal privileges and the protection of the laws. To guard the previously subject race from the effect of such discrimination, these provisions are made a part of the fundamental law of the land, and their rights were placed under the protection of the Federal government. Their object has been defined by Mr. Justice Strong in Ex parte Virginia ( 100 U. S. 344 ), where it is said that “ one great purpose of these amendments was to raise the colored race from that condition of inferiority and servitude, in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the States.” The same learned judge in Strauder v. West Virginia ( 100 U. S. 306 ), also says: “It was designed to assure to the colored race the enjoyment of all of the civil rights that, under the law, are enjoyed by white persons, and to give that race the protection of the general government, in that enjoyment, when it should be denied by the States.”

It will be observed that the language of the amendment is peculiar in respect to the rights which the State is forbidden to abridge. Although the same section makes all persons horn or naturalized in the United States, and subject to the jurisdiction thereof, citizens of the United States and of the State wherein they reside, yet, in speaking of the class of privileges and immunities which the State is forbidden to deny the citizen,

It would seem to be a plain deduction from the rule in that case that the privilege of receiving an education at the expense of the State, being created and conferred solely by the laws of the State, and always subject to its discretionary regulation might be granted or refused to any individual or class at the pleasure of the State. This view of the question is also taken in State, ex rel. Garnes, v. McCann ( 21 Ohio St. 210 ), and Cory v. Carter ( 48 Ind. 337 ; 17 Am. Rep. 738 ). The judgment appealed from might, therefore, very well be affirmed upon the authority of these cases.

But we are of the opinion that our decision can- also be sustained upon another ground, and one which will be equally satisfactory as affording a practical solution of the questions involved. It is believed that this provision will be given its full scope and effect when it is so construed as to secure to all citizens, wherever domiciled, equal protection under the laws and the enjoyment of those privileges which belong, as of right, to each individual citizen. This right, as affected by the questions in this case in its fullest sense, is the privilege of obtaining an education under the same advantages and with equal facilities for its acquisition with those enjoyed by any other individual. It is not believed that these provisions were intended to. regulate or interfere with the social standing or privileges of the citizen, or to have any other effect than to give to all, without respect to color, age or sex, the same legal rights and the uniform protection of the same laws.

As to whether such intercourse shall ever occur must eventually depend upon the operation of natural laws and the merits of individuals, and can exist and be enjoyed only by the voluntary consent of the persons between whom such relations may arise, but this end can neither be accomplished nor p>romoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it is organized and performed all of the functions respecting social advantages with which it is endowed.

The design of the common school system of this State is to instruct the citizen, and where, for this purpose, they have placed within his reach equal means of acquiring an education with otjier persons, they have discharged their duty to him and he has received all that he is entitled to ask of the government with respect to such privileges. The question as to how far he will avail himself of those advantages, or having done so, the use which he will make of his acquirements, must necessarily be left to the action of the individual.

The claim which is now made, that any distinction made by law and founded upon difference of race or color is prohibited by the Constitution, leads to startling results and is not believed to be well-founded. While the occasion of the enactment of the constitutional amendments was such as we have referred to, its language embraces and is addressed to all classes alike, and if susceptible of the construction attempted to be

It would seem to follow, as the necessary result of the appellant’s contention, that the action of the legislatures of the various States providing schools, asylums, hospitals and benevolent institutions for the exclusive benefit of the colored as well as other races, must be deemed to be infractions of constitutional provisions and unlawful exercise, of legislative power. The literal application of its provisions as interpreted by him would prevent any classification of citizens for any purpose whatever under the^ laws of the State, and subvert all such associations as are limited in their enjoyment to classes distinguished either by sex, race, nationality or creed. If the argument should be followed out to its legitimate conclusion, it would also forbid all classification of the pupils in public schools founded upon distinctions of sex, nationality or race, and which, it must be conceded, are essential to the most advantageous administration of educational facilities in such schools. Seeing the force of these contentions the appellant concedes that discrimination may be exercised by the school authorities with respect to age, sex, intellectual acquirements and territorial location, but he claims that this cannot, under the Constitution, be extended to distinctions founded upon difference in color or race. We think the concession fatal to his argument.

The language of the amendment is broad, and prohibits every discrimination between citizens as to those rights which

A natural distinction exists between these races which was not created neither can it be abrogated by law, and legislation which recognizes this distinction and provides for the peculiar wants or conditions of the particular race can in no just sense be called a discrimination against such race or an abridgment of its civil rights. The implication that the Congress of 1864, and the State legislature of the same year, sitting during the very throes of our civil war, who were respectively the authors of legislation providing for the separate education of the two races, were thereby guilty of unfriendly discrimination against the colored race, will be received with surprise by most people and with conviction by none. Recent movements on the part of the colored people of the south, through their most intelligent leaders, to secure Federal sanction to the separation of the two races, so far as the same is compatible with their joint occupation of the same geographical territory, afford strong evidence of the wishes and opinions of that people as to the

This appeal has been argued by the appellant upon the assumption that the .colored children have been excluded from something to which white children are admitted. This assumption is, we think, erroneous. The case shows that they have been afforded in all respects the same rights and the same advantages that have been awarded to the whites, and there is no more foundation for the claim that they have been excluded from the public schools of Brooklyn than there is for a claim that the pupils of one district, who are confined in them attendance to the district in which they reside, are excluded from its schools, or that the female pupils are excluded from equal privileges, because of their exclusion from male schools, on account of the regulations which require the separate education of the two sexes.

The right of the individual, as affected by the question in hand, is to secure equal advantages in obtaining an education at the public expense, and where that privilege is afforded him by the school authorities, he cannot justly claim that his educational privileges have been abridged, although such privileges are not accorded him at the precise place where he most desires to receive them. It was quite pertinently said by the court in Cory v. Carter ( 48 Ind. 363 ; 17 Am. Rep. 738 ): “ In our opinion, there would be as much lawful reason for complaint by one scholar in the same school that he could not occupy the seat of another scholar therein at the same time the latter occupied it, or by scholars in the different classes in the same school that they were not all put in the same, class, or by the scholars in the different schools that they were not all placed in one class, as there is that white and black children are placed in distinct classes and taught separately or in separate schools.”

The fact that by this system of classification one person is required to go further to reach his place of instruction than he otherwise would is a mere incident to any classification of the pupils in the public schools of a large city, and affords no substantial ground of complaint.

The highest authority for the interpretation of this amendment is afforded by the action of those sessions of Congress which not only immediately preceded, but were also contemporaneous with, the adoption of the amendment in question.

Exclusive schools for the education of the colored race were originally established in the District of Columbia, by Congress in 1862, since which time that body has, by repeated amendments to the original act, sanctioned and approved not only the constitutionality of such legislation, but also the policy of such a system of education. (Chap. 151, Laws of Congress 1862; chap. 83, same 1863; chap. 156, same 1864; chap. 217, same 1866; chap. 308, same 1873.) The following provision, which constitutes section 16 of chapter 156 of the Laws of 1864, is specially significant: “ That any white resident of said county shall be privileged to place his or her child, or ward, at any one of the school's provided for the education of white children in said county, he or she may think proper to select, with the consent of the trustees of both districts, and any colored resident shall have the same rights with respect to colored schools.” As far as we have been able to discover, this provision still remains in force, and is the law of the District of Columbia.

The thirty-ninth Congress, which originated and adopted the amendment in question, not only made appropriations and

If regard be had to that established rule for the construction of statutes and constitutional enactments which require courts, in giving them effect, to regard the intent of the law-making power, it is difficult to see why the considerations suggested are not controlling upon the question under discussion.

The question here presented has also been the subject of much discussion and consideration in the courts of the various States of the Union, and it is believed has been, when directly adjudicated upon, uniformly determined in favor of the proposition that the separate education of the white and colored races is no abridgment of the rights of either.

As early as 1849 the subject, under circumstances precisely similar to those existing in this case, was considered by the Supreme Court of Massachusetts in the case of Roberts v. City of Boston ( 5 Cush. 198 ), and the court, Chief Justice Shaw writing, say: “ Conceding, therefore, in the fullest manner, that colored persons, the descendants of Africans, are entitled by law in this Commonwealth to equal rights, constitutional and political, civil and social, the question then arises whether the regulation in question which provides separate schools for colored children is a violation of any of their rights.” And they there held that it was not, and they further say: “ The law has vested the power in the committee to regulate the system of distribution and classification, and where this power is reasonably exercised, without being abused or perverted by colorable pretenses, the decision of the committee must be deemed conclusive. The committee, apparently upon great deliberation, have come to the conclusion that the good of both classes of schools will be best promoted by maintaining the separate primary schools Tor colored and for white children, and we can perceive no ground to doubt that this is the honest re-

The following cases arising in different States may be referred to as supporting the same doctrine: Cory v. Carter ( 48 Ind. 327 ; 17 Am. Rep. 738 ); People, ex rel. Dietz, v. Easton (13 Abb. Pr. [N. S.] 159); Ward v. Flood( 17 Am. Rep. 405 ); Dallas v. Fosdick ( 40 How. 249 ); State, ex rel. Stoutmeyer, v. Duffy ( 8 Am. Rep. 713 ). These cases show quite a uniform current of authority in favor of that interpretation of the constitutional amendment which we have given to it. We have given careful examination to the various cases cited by the appellant’s counsel in support of his argument, and are of the opinion that none of them conflict with the conclusions at which we have arrived. The following cases cited by him arose under statutes which either expressly forbid or did not authorize the school authorities to separate the races and assign them to different places for instruction: Boa rd of Education v. Tinnon ( 26 Kans. 1 ); Clark v. Board of Directors, etc. ( 24 Iowa, 266 ); Smith v. Directors, etc. (40 id. 518); Dove v. Ind. School Dist. (41 id. 689); People, ex rel. longress, v. Board of Education ( 101 Ill. 308 ; 40 Am. Rep. 196 ); People v. Board of Education ( 18 Mich. 400 ).

The following cases also cited by the appellant are distinguishable from this as arising under the laws of the several States or districts where rendered, which absolutely prohibited the particular act complained of. They did not involve the construction of the constitutional amendments, or the rights of colored persons arising thereunder. Central Railroad Co. v. Green ( 86 Penn. St. 421 ; 27 Am. Rep. 718 ); Decuir v. Benson ( 27 La. Ann. 1 ); Donnell v. State ( 48 Miss. 680 ; 12 Am. Rep. 375 ); Coger v. N. W. Union Packet Co. ( 37 Iowa, 145 ).

Having thus attempted to show that principle and authority both concur in the conclusions which we have reached, in regard to the questions presented on this appeal, it only remains to refer to one or two other suggestions bearing less directly upon the questions presented, which have been made for our consideration.

The argument of the appellant’s counsel, which is founded upon that clause of the constitutional amendment granting to every citizen the equal protection of the law, must fall with his main argument as being founded upon the unwarranted assumption that this protection has been denied to the relator in this case. Equality and not identity of privileges and rights is what is guaranteed to the citizen, and this we have seen the relator enjoy. So also the claim made that the laws of this State authorizing the establishment of colored schools were repealed by the Civil Rights Act (Chap. 186, Laws of 1873) is not well .founded. It is not pretended that there has ever been any express repeal of these laws by the act in question, but it

We are thus invited to hold the school laws repealed by implication, a method frequently condemned, and never favored by the courts.

It is difficult to see how there is any inconsistency even between these several laws. The act of 1873 provides that colored persons shall have “full and equal enjoyment of any accommodation, advantage, facility or privilege furnished ” by the school authorities to other citizens. By another section the use of any term in a statute which discriminates against persons of color is repealed and annulled. This statute provides only for equal facilities and advantages for the colored race, and these we have seen the relator under the general school laws of the State enjoys. It also condemns the use of any term in a statute which discriminates against colored people. We have attempted to show that the establishment of separate institutions for their education and support was not a discrimination against them.

It will be observed that the statutes nowhere require the school authorities to establish separate schools for the exclusive use of the two races, but they leave that subject to the discretion of such authorities.

Suppose actual experience had demonstrated that on account of the discomforts and annoyances to which a minority are ever subjected on account of race prejudices, the joint education of the two races was detrimental to the interests of one of them, or the wishes of the colored race in favor of separate places of education had been conclusively expressed, would it not be a just and reasonable exercise of the discretion of the school authorities to establish separate schools in such places ? and could it in any sense be said, in case that was done, that either race was discriminated against by such exercise of discretion ? We think not. It is undoubtedly true that in many localities in this State the school authorities have not availed themselves of their authority to cause separate places of education to be established for the respective races. And

It is not discrimination between the two races whicn Is prohibited by law, but discrimination against the interests of the colored race. We cannot conceive it to be possible that it can be successfully maintained that in the establishment of schools, asylums, hospitals and charitable institutions for the exclusive enjoyment of particular races or classes, that the founders thereof are justly subject to the imputation of unfriendly conduct toward the class for whom such institutions are designed.

The same legislature which enacted the so-called Civil Eights Bill also reinvested the school authorities of Brooklyn with the power conferred by the previously existing statutes relating to the establishment of colored schools in that city, and it can hardly be implied that they intended by this act to repeal statutes which were immediately thereafter referred to by them as still existing laws.

We have thus, without considering the question as to whether the right to the writ of mandamus might not have been within the discretion of the court of original jurisdiction, and therefore unappealable, and the further question as to whether the respondent was the proper person to whom it should be addressed, arrived at the conclusion upon the merits, that the order should be affirmed.

I cannot concur in sustaining the judgment appealed from. In my opinion the relator brings her case within the spirit, the intention and the meaning of the fourteenth amendment of the Constitution of the United States, as she also does within the letter of chapter 186 of the Laws of this State, enacted in 1873, entitled “ An act to provide for the protection of citizens in their civil and public rights.” It seems to be settled by repeated decisions of the Federal courts that the object of the amendment was not only to give citizenship to colored persons, but by preventing legislation against them distinctly as colored, or on the ground of color, secure exemption against any discrimination which either implies legal inferiority in civil society or lessens the security of their rights, and which, if permitted, would, in the end, subject them while citizens to the degrading condition of an enslaved race. (Strauder v. West Virginia, 100 U. S. 303 ; County of San Mateo v. Southern Pacific R. Co., 13 Federal Reporter, 722; Ex parte Virginia, 100 U. S. 339 ; Neal v. Delaware, 103 id. 370 ; Virginia v. Rives, 100 id. 313; United States v. Reese, 92 id. 214.) This amendment became part of the fundamental law in the year 1868, and the statute of this State (supra) was passed to carry that object into effect. The first (fourteenth amendment) declares that “ no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, * * * nor deny to any person within its jurisdiction the equal protection of the laws.” And it can make no difference in its application whether the regulation which produces that effect is embodied in a law coming directly from the legislature, or is found in an ordinance, or rule, or direction emanating from an officer whose authority to act at all in the matter is derived from the legislature. (Ex parte Virginia, supra; Neal v. Delaware, supra.)

The statute, however, with more detail and directness, so far as the case in hand is concerned, declares (§ 3) that discrimination against any citizen on account of color, by the use of the word “white,” or any other term in any law, statute, ordi

It is conceded that the appellant was forbidden to enter school Ho. 5 because of her color, and she was directed to go to school Ho. 1, because it was a “colored school.” The inquiry, then, was as to the color of the proposed pupil, and the action of the respondent was determined solely by it. I am unable to see why this regulation does not stand upon “ a word or term,” which, by the very language of the act cited, was forbidden to be used as the means of discrimination. It is as if the respondent had said “ white children only can attend this school; you are not white.” Was not the relator “ excepted or, excluded ” from the accommodation or privilege afforded by that school by reason only of her “ race or color ” % Clearly she was. It is argued by the respondent, however, that this does not constitute a discrimination against the relator, because the colored school would, “ to the best of his judgment, information and belief, afford to the relator ” every accommodation and facility for learning which she could obtain at the one from which she was excluded.

The principle of these decisions applies here. In one case, as in the other, is discrimination on account of color. The fatal defect is in the fact of discrimination and its cause. To this effect is Central R. R. of N. J. v. Green ( 86 Penn. St. 421 ; 27 Am. Rep. 718 ); and more in point, Board of Education v. Tinnon ( 26 Kans. 1 ) and People, ex rel. Longress, v. Board of Education ( 101 Ill. 308 ; 40 Am. Rep. 196 ).

The respondent has referred to a number of cases as holding a different doctrine: People, ex rel. Dietz, v. Easton (13 Abb. Pr. [N. S.] 159); Dallas v. Fosdick ( 40 How. Pr. 249 ), and some from other States. They have been, examined, but found insufficient, upon the facts and statutes before us, to sustain the doctrine contended for by him. People, ex rel. Dietz, v. Easton and Dallas v. Fosdick (supra) were both decided before the passage of the Civil Eights Act of 1873 (supra). The first was at Special Term and the latter at General Term by a divided court, one judge dissenting and another taking no part. The last decision being put upon a law relating to the city of Buffalo, which imperatively required separate schools for black children to be provided and their attendance limited thereto. By that law (1853, chap. 230), the public schools of Buffalo were free only to “white children” (Title 6, § 5). The other (People, ex rel. Dietz, v. Easton)

If the respondent is, right, then with equal plausibility it might be said that the city of Brooklyn could provide parks, streets and sidewalks exclusively for persons of color, or, if elected, as they may be, to sit in its council chamber, prescribe absolutely what seats they shall occupy, or its courts assign to the jurymen of that race, boxes separate from others, denying them access to other streets, parks, sidewalks and seats. It would not answer in either case to say all these things are equal or even better in degree than those., This would still be discrimination against the race, and so with the school, the main business of which is to prepare a youth for his future duties as a citizen in his various relations toward the State, the performance of obligations due to other citizens, and possibly even-forbearance and conduct toward opposing races.

The State gathers to its treasury the money of the tax payer without inquiry as to his color ; — with like indifference accepts his vote, and subjects him to its laws, and in return,' among other privileges, provides an opportunity for education. This

The first act, that of 1864 (supra, art. 5, § 39), provides that “ Common schools in the several school districts of this State .shall be free to all persons over five and under twenty-one years of age, residing in the district,” but section 40 declares that if a school district include a portion of an Indian reservation whereon a school for Indian children has been established by the superintendent of public instruction, and is taught, the school of the district is not free to Indian children ‘resident in the district, or on the reservation, nor shall they be admitted to such school, except by the permission of the superintendent.” It is apparent, first, that the education of all children within the ages named is intended to be provided for; second, that separate schools maybe established for Indians and separate schools for colored children; and third, I think it clear from the different phraseology used by the legislature in reference to these races that a colored child might attend either a

And so with the legislation under review by the Supreme Court in Dallas v. Fosdick (supra). The language in terms excludes colored children. Such language is not to be found within the limits of the statutes relating to Brooklyn. But we have now the act of 1873 (Chap. 186 already cited), which permits no doubt as to the present absolute right of each child not disqualified by some mental or moral defect, to attend the common school established in the district where he resides. Previous limitation on account of color, if any existed, necessarily ceased with the enactment of this act (1873, supra). Nor did the subsequent statute of June, 1873 (Chap. 863), amending the charter of Brooklyn, or the act (Chap. 420) of the same year, relating to the board of education, have the effect to repeal as to that city the Civil Rights Act already cited (Chap. 186, Laws of 1873). An express repeal is not pretended, and there is nothing in the act from which a repeal can be implied. The two acts have different objects; the first (that of April, 1873, supra) is defined by its title and was aimed at the protection of the citizen, while the other (that of June, chaps. 420? 803) as part of the general charter of the city, created a department of public instruction, to be under the control of a board of education, to which it declares “ all the provisions of law relating to the present board of education shall apply,” and if I am right in the foregoing discussion, then among others, the provisions of the act just before passed (Chap. 186).

It is not long since the inferiority of the colored man was received by a great majority of the white race as a general edict of nature, and upon it as a fundamental principle laws were passed, and regulations, usage and custom founded. In deference to it, and the general sentiment of antipathy to the

We find, however, in the opinion of the learned judge who disposed of this case at Special Term, a suggestion that the discrimination was in favor of the colored child. That question may well be left to the child itself. The statute should not be construed as prohibiting such intercourse or association. For any regulation by which the black is kept in a state of separation is in fact one of exclusion and reflects the sentiment by which the white assumed to be the superior race, a discrimination against which the law is now directly aimed. In regard to schools the question can arise but seldom. In most of the counties and cities of this State no provision is made for the separate education of colored children. In a few counties, and in the city of New York as well as Brooklyn, such accommodations are provided. But when they are not confined to those schools and excluded from others, the attendance at them has steadily decreased, as we learn from the reports of the board of education of the city of New York, made under the direction of the legislature (Laws of 1851, chap. 386, § 3, subd. 10), and that this diminished attendance is due to the fact that all its public schools are now open to pupils without distinction of race or color, and “ that many parents and guardians of colored children have, therefore, availed themselves of the privilege in

From the report of 1880, made by the board of education of the city of Buffalo, we find the same condition exists in that city. Colored children now attend the other schools with such unanimity that the superintendent recommends, that by legislative interference, the compulsory part of the law be repealed and the city no longer required to provide separate schools for children who cannot be compelled to resort to them.

In the case before us the city is under no obligation to maintain a separate school for children of color. But the objection is not to its existence; the objection is that the relator is compelled to attend it because of her color, and so is excluded from schools to which children of another race are permitted to resort. The exaction is, therefore, unequal, and is, I think, in violation of the law which gives to all children, within the several districts, an equal right, in like cases and under like circumstances, to go to those schools for education. I am, therefore, led to the conclusion that the relator, on account of her color, has been prevented, by a public officer and by ordinance or regulation, from enjoying an accommodation or privilege to which, as a citizen of this State, she is entitled. In such a case the court has no discretion to exercise, for the writ of mandamus affords the only adequate remedy, and it should have been, granted. (People, ex rel. Gas-light Co., v. Common Council of Syracuse, 78 N. Y. 56 .)

The orders of the Special and General Terms should, therefore, be reversed, and a writ issued, pursuant to the prayer of the petitioner.

Rapallo, Miller and Earl, JJ., concur with Ruger, Ch. J.; Finch, J., concurs with Danforth, J.; Andrews, J., absent.

Orders affirmed.