THE STATE OF NEVADA ex rel. DAVID STOUTMEYER v. JAMES DUFFY et als.
State ex rel. Stoutmeyer v. Duffy
THE STATE OF NEVADA ex rel. DAVID STOUTMEYER v. JAMES DUFFY et als.
THE STATE OF NEVADA ex rel. DAVID STOUTMEYER v. JAMES DUFFY et als.
Negroes in toe Public Schools — Mandamus. Where the trustees .of a public school refused to admit a negro, between the ages of six and eighteen, and a resident of the district, as a pupil into such school: Held, that an application for mandamus to compel such admission should be granted.
Exclusion or Negroes erom Public Schools Unconstitutional. Section 50 of the school law, (Stats. 1867, 95) in so far as it excludes negroes from the public schools, is unconstitutional. fc
Power or School Trustees to “ Classier-” Pupils. While school trustees cannot legally deny to any (such as a negro) resident person of proper age an equal participation in the benefits of the common schools; yet it is entirely within their power to send all blacks to one school and all whites to another; or, in other words, to make such classification, whether based on age, sex, race or any other existent condition as may seem to them best.
This was an original application to the Supreme Court on the relation of,David Stoutmeyer, a colored minor appearing by his father and natural guardian,' Nelson Stoutmeyer, for a mandamus requiring James Duffy, S. H. Wright and M. C. Gardner, the board of trustees of the public schools in school district No. 1, in Ormsby County, to admit him into the public schools of that district. The petition set forth that David was seven years of age, a resident of the district, cleanly and neat in his habits, orderly in his deportment, tractable in his disposition, and ready cheerfully to obey and conform to all the laws, rules, usages, customs and discipline of the schools; that on April 10th, 1871, he, through his said father and natural guardian, presented a written application to said trustees for admission to such schools; and that they had failed and refused to admit him.
T. W. W. Davies, for Relator.
I. The constitutional and statutory provisions regulating the apportionment and distribution of the school moneys among the various counties and school districts of this state, have invariably made the number of children, irrespective of race or color, the basis of apportionment. It is clear that any apportionment on such a basis would be unequal, unfair and unjust, unless all the children, for whom money is received, are allowed the benefits of instruction-in the public schools supported and maintained by such moneys; and that it would be unreasonable to allow money for the education of children in the public schools who are denied admission to the same. Con. of Nev., Art. XI, Sec. 3; Stats. 1861, 274, Sec. 2; 1862, 113, Sec. 4; 1869,172, Sec. 32; 1869,173, Sec. 38.
II. Section 50 of the school law, (Stats. 1867, 95) denying negroes admission to the public schools, is unconstitutional and void. It is in conflict with the constitution and laws of the United States. U. S. Con. Amendment, 14; 5 How. 410; 7 Peters, 469; 6 How, 507; 18 How. 71; 18 How. 591; 2 How.'84; 7 Wall. 321; Laws of the United States, 39th Congress, 1865-6, 27, Secs. 1 and 2; U. S. Stats. 1869-70, 144, Sec. 16; U. S. Stats. 41st Congress, 3d ses.; 42d Congress, 1st ses. No. 17,295, Secs. 1 and 2. If all citizens are entitled to the same rights, privileges and immunities, certain rights cannot be legally accorded to one class or race of citizens, and denied to another. The section is also in conflict with that provision of the United States and state Íconstitutions which declares that no person shall be deprived of property without due process of law, for the reason that the right to attend the public schools and receive instruction is a property right, capable of being estimated in money; Ex parte G-arland, 4 Wall. 344.
III.Section 50 of the school law is also in conflict with Art. XI, Sec. 2 of the state constitution, which requires the provision by the legislature of a uniform system of common schools, by which a school shall be established and maintained in each school district, and such laws as will secure a general attendance of the children in each district upon said public schools.
IV.The school law in as far as it legislates against a race or class of citizens on account of their color, is in the highest degree unjust and should be declared invalid and void. If the legislature may exclude colored citizens from the public schools, there is no limitation to their power. The question is one of power, and if we admit the power to exclude from the public schools, we must admit the power in its whole extent, as a power complete in itself, to be exercised at the discretion of the legislature and subject to no limitation or restraint, and colored* citizens may be excluded from holding office, sitting on juries, visiting places of public entertainment, and the like.
V.The separation of the children in the' public schools, on account of race or color, is in the nature of caste, and is a violation of equality.. It is clear that the trustees may classify scholars according to age and sex, for these distinctions are inoffensive and recognized as legal; or according to their moral and intellectual qualifications, because such a power is necessary to the government of schools. But the legislature cannot assume, without individual examination, that an entire race possess certain moral or intellectual qualities, which renders it proper to place them all in a school by themselves. Nor is it any good answer to say that separate schools may be established for their instruction, because such separate schools are not the public schools designed by the constitution.
VI. The attempt to discriminate against and to abridge and impair the rights of colored citizens, comes with bad taste from the state of Nevada. It will be remembered that this state was organized in the midst of a great war, fought for the enfranchisement of the slaves and for the establishment of the great doctrine that all men are free and equal, and that, in that contest, this state enthusiastically supported that doctrine. It will be further remembered, that this state, with the utmost alacrity, ratified the thirteenth, fourteenth and fifteenth amendments to the United States constitution, the object and intent of which were to declare and fix the absolute equality of all men before the law.
A. G. Bilis and B. M. Qlarlte argued the case orally on behalf of the Respondent.
By Whitman, J. :
Relator asks a mandamus compelling defendants to admit him into the public school of which they are trustees.. They object that the remedy sought should not be granted, first: because they have not the power to admit, nor to deny admission; second: because the applicant is a negro.
The power to admit to the public schools is not in words conferred upon trustees in this state, but it is so inseparably connected with their specified powers, and so inevitably a conclusion therefrom, that no argument is needed to prove its necessary existence. Stats. 1864-5,413; 1867,89. The trustees have general control and supervision; and while they may not see fit to require any applicant for school privileges to obtain from them an order of admission, they have the power to make such a'regulation; and upon the other hand, every person qualified under the law to attend the public schools is entitled to such an order upon due demand.
The question then is, what qualifies a person to receive such an order. The applicant must be over six and under eighteen years of age, and ordinarily a resident of the district where admission is sought. So being, it is contended for relator that admission fol lows as of absolute right. While it would probably be unsafe to admit the proposition in its stated breadth; as it might be subject to qualification by reasonable rule, as to moral obliquity or mental incapacity; it may be accepted for this case, wherein it is unnecessary to look minutely into the matter, as the only ground for refusal here was the race of the applicant. The trustees yield obedience to the statute, which prescribes that " Negroes, Mongolians and Indians shall not be admitted into the public schools, but the board of trustees may establish a separate school for their education, and use the public school funds for the support of the same." Stats. 1867, 95, Sec. 50. To this relator replies, that such statute is opposed to the constitution and laws of the United States; and to the constitution of the state of Nevada.
While it may be, and probably is, opposed to the spirit of the former, still it is not obnoxious to their letter; and as no judicial action is more dangerous than that most tempting and seductive practice of reading between the written lines, and interpolating a spirit and intent other than that to be reached by ordinary and received rules of construction or interpretation; such course will be declined, and reference at once had to the constitution of this state. What says that ? " The legislature shall provide for an uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year; and the legislature may pass such laws as will tend, to secure a general attendance of the children in each school district upon said public school." Const. Art. XI, Sec. 2. It is further provided in that article, of certain pledged revenues, that " the interest thereon shall, from time to time, be apportioned among the several counties in proportion to the ascertained numbers of the persons between the ages of six and eighteen years in the different counties, " Section 3.
These are the only references made to, or designation of, the beneficiaries of the school fund. Either something or nothing is provided as to such. If the constitution provides anything in the language quoted, it provides for the education of all children of the state, between the ages of six and eighteen years; by means of an uniform system of common schools, open six months at least every year, and that the legislature may legislate to secure a general attendance thereon. Waiving the point that "may" should read " shall " in the last sentence; yet when the legislature has acted, can it be said to have done so in accordance with the constitution when it prohibits the attendance of any children within the stated ages upon the schools erected as common schools, and supported by the funds pledged thereto ? Can such schools be schools common to all children of appropriate age; or. upon an uniform system, when any such children are excluded ? It may be said that the constitution nowhere in express terms provides for the education of all children within certain ages. If so, then it nowhere provides for the education of any. If any are provided for, then all are. If all are not, then none are; and the legislature may divert from the education of youth between the ages of six and eighteen, and expend upon the entire community, or upon any portion it may see fit, the funds which it has been universally supposed were solemnly and irrevocably pledged to the former purpose. Of course this possible result does not prove anything of itself; but its contemplation may serve to turn the otherwise unwilling mind to a natural construction of the constitutional language. If the reading suggested be the proper one, and I think it is, then the action of the legislature in passing Section 50 of the school law quoted was unconstitutional; and the trustees erred when they conceived themselves bound thereby and acted thereunder, as the same was void.
My conclusion is that certain funds are pledged and certain taxation allowed for the support of common schools, which are public and open to be enjoyed by all resident children between the ages of six and eighteen years; subject, perhaps, to some qualification as before suggested. So it has been held in Massachusetts under a constitution no more' specific upon the subject than that of this state, and in Michigan under a statute similar to the one under consideration, minus its fiftieth section. Roberts v. Boston, 5 Cush. 198; People v. The Board of Education of Detroit, 18 Mich. 400. This general position is, however, to be taken subject to the very great powers of the trustees to arrange and classify the schools as they deem for the best interest of the scholars. While on the one hand they may not deny to any resident person of proper age an equal participation in the benefits of the common schools; and while in the present case upon the facts presented, the defendants should have admitted the relator into the public school in question; yet, on the other hand, it is perfectly within their power to send all blacks to one school, and all whites to another; or, without multiplying words, to make such a classification, whether based on age, sex, race, or any other existent condition, as may seem to them best. Van Camp v. Board of Education of Logan, Y. O. S. 406; Roberts v. Boston, 5 Cush. 198.
Whether it be well or ill to classify or divide, on either or all of the conditions suggested, or upon any other, is entirely within the discretion of the trustees, acting intelligently within their powers.
I think the mandamus should be ordered.