Opinion - Reynolds

The syllabus of the case of Ward v. Flood, 48 Cal. 36, 17 Am. Rep. 405, is as follows:

"The opportunity of instruction in public schools, given by the statute to the youth of the state, is in obedience to the special command of the state constitution, and the privilege thereby granted is a legal right, as much so as a vested right in property.

"The clause in the fourteenth amendment to the constitution of the United States, which forbids a state to 'deny to any person within its jurisdiction the equal protection of the laws,' did not create any new legal rights, but operated upon legal rights as it found them established, and declared that such as they were in each state, they should be enjoyed by all persons alike.

"The legislature cannot, while providing a system of education for the youth of the state, exclude from its benefits children merely because of their African descent.

"The law providing for the education of children of African descent in separate schools, to be provided at the public expense the same as other public schools, is not in conflict with the constitution of this state, nor in conflict with the thirteenth and fourteenth amendments to the constitution of the United States.

"When such law exists, colored children may be excluded from schools established for white children, provided schools for colored children are established, affording the same facilities for education; but if such schools for colored children are not established, they cannot be excluded from the schools kept for white pupils."

Other decisions are equally clear.

The fact that laws of this character have been in force for many years in many states and in the district of Columbia, and that no question as to their validity has ever been presented to the supreme court of the United States, discloses a remarkable consensus of opinion on the part of the bar of the country as to the result of such an appeal. A statute of the state of Louisiana required railway companies carrying passengers in their coaches in that state to provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger-coaches for each passenger-train, or by dividing the passenger-coaches by a partition so as to secure separate accommodations. In affirming the constitutionality of this law, the supreme court of the United States sustained its opinion by citing the decisions of the state courts upon the question under discussion, and said:

"The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of states, where the political rights of the colored race have been longest and most earnestly enforced." (Plessy v. Ferguson, 163 U. S. 537, 544, 16 Sup. Ct. 1138, 41 L. Ed. 256.)

The act of the legislature of 1879 providing for the education of white and colored children in separate schools of cities of the first class, except in the high school, is, therefore, in all respects constitutional and valid.

Finally, it is asserted that the educational facilities in fact provided for plaintiff's child are not equal to those afforded white children of the same age and attainments residing in the same neighborhood. The evidence has been examined and upon the whole no substantial discrimination is disclosed. True, for the accommodation of a numerous white population a much larger and more imposing school building is provided than that set apart for the few colored children in the district. This, however, is but an incidental matter and necessarily unavoidable in the administration of any extended school system. Schoolhouses cannot be identical in every respect; and parents cannot, on this acount, dictate the one their children shall attend. As was said in People, ex rel. King, v. Gallagher, supra.

"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 . . . . Equality and not identity of privileges and right is what is guaranteed to the citizen."

No substantial right of the plaintiff having been violated, the writ is denied.

All the Justices concurring.