Dameron v. Bayless

ROSS, J.

Preliminary to discussing the above propositions, it may be said that the highest courts of practically every state, where this question has been raised, have held the segregation of white children from colored children in the schools constitutional. 35 Cyc. 1111; Lekew v. Brummell, 103 Mo. 546, 23 Am. St. Rep. 895, 11 L. R. A. 828, 15 S. W. 765; People v. Gallagher, 93 N. Y. 438, 45 Am. Rep. 232; Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 738; McMillan v. District No. 4, 107 N. C. 609, 10 L. R. A. 823, 12 S. E. 330; Ward v. Flood, 48 Cal. 36, 17 Am. Rep. 405; Richardson v. Board etc., 72 Kan. 629, 84 Pac. 538; Chrisman v. City of Brookhaven, 70 Miss. 477, 12 South. 458; People v. Queen’s Borough, 161 N. Y. 598, 48 L. R. A. 113, 56 N. E. 81; Reynolds v. City of Topeka, 66 Kan. 672, 72 Pac. 274; Board of Education of Kingfisher County v. Board of Commrs. of Kingfisher County, 14 Okl. 322, 78 Pac. 455; State v. Duffy, 7 Nev. 342, 8 Am. Rep. 713.

The United States cases, both in the supreme court and in the district courts, on the same and kindred questions, have held such laws constitutional. Plessy v. Ferguson, 163 U S. 537, 41 L. Ed. 256, 16 Sup. Ct. Rep. 1138; United States v. Buntin (C. C.), 10 Fed. 730; Wong Him v. Callahan (C. C.), 119 Fed. 381.

The court’s conclusions of law will be considered in their order.

1. The matter of nearness or remoteness of schoolhouse to the pupils’ residence ordinarily should have no place as a factor in determining the adequacy and sufficiency of school facilities. That the child has to go a greater distance than other children may be a hardship, but that hardship may arise from many causes and often is occasioned by the parents ’ conveniences and necessities. Increase of population makes demands for more school buildings, and it is not possible to locate new buildings equidistant from all patrons. The law will not measure with a yardstick these distances, but it will and does require that, after children arrive at the school building, it be as good a building and as well equipped and furnished and presided over by as efficient a corps of teachers as the schools provided for the children of other races. In the case of Lehew v. Brummell, 103 Mo. 546, 552, 23 Am. St. Rep. 895, 11 L. R. A. 828, 15 S. W. 765, 766, the court said: “It is true Brummell’s children must go three and one-half miles to reach a colored school, while no white child in the district is required to go further than two miles. The distance which these children must go to reach a colored school is a matter of inconvenience to them, but it is an inconvenience which must arise in any school system. The law does not undertake to establish a school within a given distance of anyone, white or black. The inequality in distance to be traveled by the children of different families is but an incident to any classification, and furnishes no substantial ground of complaint. People ex rel. King v Gallagher, 93 N. Y. 438-451, 45 Am. Rep. 232. ’ ’ In the last-mentioned case the court said: “It is quite impracticable for the authorities to take into account and provide for the gratification of the taste, or even the convenience, of the individual citizen in respect to the place or conditions under which he shall receive an education. In the nature of things one pupil must always travel further to reach a fixed place of instruction than another, and so, too, the resident of one district is frequently required to go further to reach the school established in his own district than a school in an adjoining district; but these are inconveniences incident to any system, and cannot be avoided. It is only when he can show he is deprived of some substantial right, which is accorded to other citizens and denied to him, that he can successfully claim that his legal rights have been invaded.”

2. The crossing of railroad tracks as another inconvenience is attended with risks of being run down; but in these days of automobiles and street railways it behooves a pedestrian, wherever he is, to keep a sharp lookout. Indeed, the steel rails, the ringing bells, the escape of steam, all admonish the pedestrian and warn of dangers much more effectively than the more frequent in passage, but less noisy and bulky, instruments of commerce and transportation fraught with a like danger to life and limb by coming in contact therewith. It is a matter of common knowledge, which we may not overlook, that many more accidents occur from the careless operation of automobiles and street railways than on railways operated by steam. It would be difficult for children located in any part of school district No. 1 of Maricopa county to attend school without being subject to the hazards incident to the operation of those instruments of commerce and conveyance.

As was said in the case of King v. Gallagher, supra: “Equality and not identity of privileges and rights is what is guaranteed to the citizen.” According to the findings of the lower court, the Madison street school and its facilities were in many respects superior to any other school in the district, as was also the instruction, and in no respects was it inferior to any.

Our conclusion is, that the facts in this ease did not authorize the granting an injunction against the school board. The case is, accordingly, reversed and remanded to the superior court of Maricopa county, with directions that the injunction be vacated and the case dismissed.

FRANKLIN, C. J., and CUNNINGHAM, J., concur.

NOTE.—As to .the separation of white and colored pupils for purposes of education, see note in 13 Ann. Cas. 342.