State v. Duffy. cannot obtain justice, and thus it comes strictly within the letter of the statute. The court below erred in denying the motion. Its judgment must, therefore, be reversed. Judgment reversed. STATE ex rel. STOUTMEYER Vv. DUFFY. (7 Nev. 842.) Constitutional law-education of colored persons. Mandamus. A mandamus will lie compelling trustees to admit colored persons to the public schools, where separate schools are not provided for such persons. APPLICATION for a mandamus compelling the board of trustees of a school district to admit a negro, between the age of six and six teen, to the public school. T. W. W. Davies, for relator. A. C. Ellis and R. M. Clarke, for respondent. 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, 1865, p. 413; 1867, p. 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. VOL. VIII.-90 State v. Duffy. 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 follows 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." Stat. 1867, p. 95, § 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. 11, § 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 any thing in the anguage quoted, it provides for the education of all children of the State, between the ages of six and eighteen years, by means of an State v. Duffy. 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 any thing 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 State v. Duffy. 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. LEWIS, C. J., concurred in the result. GARBER, J., delivered a dissenting opinion. Mandamus granted. INDEX. ACCEPTANCE. See PAROL ACCEPTANCE. ACCIDENT INSURANCE. See INSURANCE, 1. ACCOUNT. See PARTNERSHIP, 1, 4; TENANTS IN COMMON, 2. ACTION. 1. A husband and wife commenced an action for a malicious replevin of their household furniture, alleging that the replevin suit was commenced with intent to injure the wife, and actually resulted in her injury by the removal of the furniture. It appeared that the replevin suit was still pending. Held, that the action could not be maintained. O'Brien v. Barry, 329. 2. An action cannot be maintained in the courts of Vermont, on a bond executed to a judge of probate in New Hampshire, to secure the proper discharge of the duties of a guardian, the duties imposed by the guardian's appointment, the obligation created by the bond, and the rights and remedies under it, being all prescribed by the statute of New Hampshire. Judge of Probate, etc., v. Hibbard, 394. 8. Where A has agreed to sell property to B, C may, at any time before the title has passed, induce A not to let B have the property, and to sell it to himself, provided he be guilty of no fraud or misrepresentation, without incurring any liability to B. In such a case A alone is liable to B for the breach of contract; and B cannot maintain an action against C for damages. Ashley v. Dixon, 559. See BANKRUPTCY, 2; CONSPIRACY; PROMISSORY NOTE, 10; REAL ESTATE, 3 ACTS OF LEGISLATURE. 1. If a law has been regularly promulgated according to the forms of the constitution, its invalidity will not be examined or passed upon by the judiciary on alleged irregularities or informalities committed by the general assembly in passing it, nor will parol evidence be received to show that the general assembly have not complied with the requirements of the constitution in passing it. The Louisiana State Lottery Co. v. Richoux, 602. See 3 Am. Rep. 161. 8. An act of the general assembly will not be declared void because its objecta are not set forth in its title, if the title discloses the objects of the act in terms so clear that no one can be misled thereby. Ib. |