People, Ex Rel. King v. . Gallagher , 93 N.Y. 438 ( 1883 )

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. WestVirginia, 100 U.S. 303; County of San Mateo v. SouthernPacific 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, ordinance or regulation then existing in this State, shall be annulled, and secured immunity to him in the future by providing that no citizen should, "by reason of race, color or previous condition of servitude, be excepted or excluded from the full and equal enjoyment of any accommodation, advantage, facility or privilege furnished by," among others, * * * "trustees, commissioners, superintendents, teachers and other officers of common schools and public institutions of learning." It is unnecessary to spend time in discussing the effect of the amendment as determined by any distinction between citizens of the United States and citizens of the States, or their civil rights in those two characters. For, so far as the relator is interested in the present question as a citizen of the State, and within its limits, she may rely on this law of the State. (Supra.) By it the doctrine under which the African race was regarded as of a rank or condition inferior to that of the white was abolished, and we are to see whether the action of the respondent was in violation of the law by which this change was brought about.

It is conceded that the appellant was forbidden to enter school No. 5 because of her color, and she was directed to go to school No. 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.

I find no support for this in the law. It is not provided that the colored pupil shall have furnished to her equal or similar accommodations as the white pupil, but that she shall not be excluded from any accommodation, advantage, facility or privilege furnished by the officers of common schools; she shall, therefore, have the same, and be denied those schools for no reason save such as would exclude the children of another race. In other words, difference of color of skin, or variety of race shall, as to the accommodations or privileges spoken of in the statute, be deemed not to exist, at least, that the school officer in his official capacity shall be so ignorant of their existence as to take no notice of either, and when he does, and, therefore, excludes from any school a person who, except for such color or race, would be received therein, the discrimination is against that person; the door is shut against her, and that is proscription. In Ex parte Virginia (100 U.S. 339) andStrauder v. West Virginia (id. 303) it is in substance said that one great purpose of the then recent amendments to the Constitution was to remove the colored race from a condition of inferiority and servitude into perfect equality of civil rights with all other persons within the jurisdiction of the States; that they were intended to take away all possibility of oppression by law because of race or color, and amounted to a declaration that the law should be the same for the black as for the white. Our own statute is more specific, but both were designed to release that race from any disability or restraint to which the other was not subjected, and make their rights and responsibilities the same. One cannot, on account of color, be excepted from jury lists (Ex parte Virginia, supra; Strauder v.West Virginia, supra), and a statute which effects that is said to put "a brand upon him, and create a discrimination against him, which is forbidden." Strauder's Case (supra), RailroadCo. v. Brown (17 Wall. [U.S.] 445) was under a law of Congress giving privileges to a railroad company, accompanied with a provision "that no person shall be excluded from the cars on account of color." The company provided two cars, but set apart one for colored persons and the other for white, and such was the arrangement that on the down and up trips their places were reversed. The cars, therefore, were alike comfortable, and in turn appropriated to the two races, but separately. A colored woman being excluded from one, and sent against her will to that assigned to her race, brought suit against the company, and succeeded, the court holding that the regulation separating the colored from the white passengers was illegal, and in answer to the defendant's claim that so far from excluding this class of persons from the cars they had provided accommodations for them, said "this is an ingenious attempt to evade a compliance with the obvious meaning of the requirement," which was not merely that colored people should be allowed to ride, but that in the use of the cars there should be no discrimination because of their color.

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. Boardof 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 Rights 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) arose in the city of Albany. The whole city was one school district. There was no school, therefore, with which any child had any special connection, and the board of education exercised over the relator in that case the same jurisdiction which determined the location of other scholars, and upon this ground the claim of the relator to be sent to the school nearest his residence was denied. The question of color came incidentally before the court, and the effect of the fourteenth amendment was discussed, but not necessarily, nor does the decision turn upon it. Roberts v. City of Boston (5 Cush. 198) was decided in 1849, before the adoption of the fourteenth amendment, and does uphold to the furthest extent the right of a municipality to compel the education of colored children in schools apart from white children; but those schools have been discontinued under the operation of a law passed by that Commonwealth in 1855, which provided that in determining the qualifications of scholars to be admitted into any public school or any district school, "no distinction shall be made on account of the race, color or religious opinions of the applicant or scholar."

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 being conceded, the manner of adjusting it is evidently the one prescribed by the State itself — schools free to all children, therefore to children of both races, upon conditions applicable to each alike. No other can be relied upon. The application of the rule contended for by the respondent would vary according to the conceit or bias of the school board, and the estimate they might put upon the relative positions of the two races; the needs of the colored pupil and required capacity of her teacher. There is also the general law of the State declaring all common schools (and that in question is one of them) free to all persons over five and under twenty-one years of age, residing in the district (Act of 1851, chap. 151, § 1; act of 1864, chap. 555, title 7, art. 5, § 39), and these schools were necessarily open to colored as well as white children. It is contended, however, by the respondent that the statute last cited (Title 10, §§ 1, 2), and the statute of 1850 (Chap. 143, § 4) gave to the board of education power to establish separate schools for colored children. Conceding that to be so, it does not follow that they should or can be excluded from others. Different language would naturally be employed to express such a purpose.

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 may be 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 colored school or white school at his election. In regard to him there are no words of prohibition as in the case of the Indian, and, except for those words of prohibition, it was the evident understanding of the legislature, an Indian could attend either. The white school remained free to the colored pupil, but was closed against the Indian, except by permission of the superintendent of public instruction.

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 negro race, "colored schools" were authorized by the statutes referred to, and then certain schools before free to all were open only to the white citizen. By the act of 1873 (Chap. 186) the "word or term" which was thought to permit this discrimination was annulled, and thenceforward it became impossible. Neither the wisdom nor justice of this course of legislation is now in question, nor are we to inquire whether co-education of the races is desirable, or more or less likely than the separate system to promote the welfare of either, but it cannot, I think, be doubted that the latter, when enforced by law against the wish of the colored race, is directly calculated to keep alive the prejudice against color from which sprung many of the evils for the suppression of which the fourteenth amendment and our own civil rights statute were enacted.

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 the matter of selection of schools." (See reports of 1881 and 1882.)

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.