Kaine v. Commonwealth ex rel. Manaway , 101 Pa. 490 ( 1882 )

Mr. Justice Mercur

delivered the opinion of the court, December 30th 1882.

The first section of the Act of 8th of June 1881, Pamph. Laws 76, declares that “hereafter it shall be unlawful for any school director, superintendent or teacher to make any distinction whatever on account of or by reason of, the race or color of any pupil or scholar, who may be in attendance upon or seeking an admission to any public or common school, maintained wholly or in part under the school laws of this Commonwealth.” Sect. 2 repeals the 24th section of the Act of 8th of May 1854, which authorized the establishment of separate schools for the .tuition of negro and mulatto children.

This writ of mandamus issued at the relation of a colored man who averred, inter alia, that he was a resident and tax-payer in the school district of the Borough of Uniontown, and that his child, who was above the age of six and under the age of twenty, one years, was denied admission into the public or common school of said district; that a separate school for the tuition of colored children had been established in the East Ward of said district, remote from the relator and not easy of access; that he resided in the West Ward of the district, and near the main public school building, and easy of access thereto, and that his said child was refused admission to said school, by reason of his color.

In answer - thereto the school directors aver various reasons for assigning the child to another school building than the one into which lie seeks admission; but make no distinct denial that he is excluded therefrom by reason of his color, and they deny the right of the relator to inquire into the reasons or motives of the school directors in assigning his child to the one school house or the other. On demurrer the court adjudged the answer insufficient and entered judgment in favor of the Commonwealth, and ordered a peremptory mandamus to issue, commanding the plaintiffs in error to admit the minor son of the relatolas a pupil into the public school under their control in the said main school building, and to proceed to determine into which grade or class of said school the said minor child shall so be admitted as a pupil.

This order of the court presents the main cause of complaint,, although several errors are assigned.

The first and the second question the power of the court to-award either the alternative or the peremptory mandamus.

There is no denial in the answer that a separate school for the tuition of colored children is established in the district; nor is there any clear and specific denial that the son of the relator is refused admission into the other school by reason of his color. It is true the answer does declare other reasons why the boy was excluded from the one school and assigned to the other; but carefully fails to meet or deny the charge, that the controlling reason therefor is his color. Notliing less than plain and direct answers to all the material allegations in the- writ of mandamus, present distinct issues of fact. Skillful avoidance of a material allegation, or argumentative inferences are not sufficient: Commonwealth ex rel. Middleton v. Commissioners of Allegheny Co., 1 Wright 237; 8 Casey 218.

It is asked may not the school directors and teachers assign the boy to such room and school as may be adapted to his grade and attainments? Undoubtedly they may. Their authority and discretion in that inspect is not questioned here. The objection is, that their action is not based on any consideration of his qualifications or attainments, but rests on his color alone. This is in direct conflict with the Act of Assembly cited. The law making power of the Commonwealth has declared that such action by “ any school director, superintendent or teacher shall be unlawful.” The 23d section of the Act of 8th May 1854; P. L. 622, declares “the directors and controllers of the respective districts shall have power to establish schools of different grades, and determine into which school each pupil shall be admitted.” This power, however, must be exercised in subordination to the later Act of 8th of June 1881, and not in conflict with any of its provisions. The cases cited in Ohio, Indiana, California, Louisiana and New York were not ruled on any statute similar to ours, and cannot therefore be authority in its construction. The question before us is not whether the action of the school directors is directly in conflict with the Constitution of the United States, but whether it is forbidden by the statute of Pennsylvania, which does not impinge on the Constitution of the United States nor on any law of Congress. The statute is in harmony with the spirit and object of the 14th Amendment, section 1, of the Constitution of the United States.

It is clearly within legislative power to prescribe the duties of school directors, and direct that they shall not. make any distinction on account of race or color, in expending the public money. Their duty being declared by statute the. courts are empowered to compel its performance. As no other adequate and specific remedy is provided by statute or furnished by action at common law, mandamus is the proper remedy: Commonwealth ex rel. Thomas v. Commissioners of Allegheny County, 8 Casey 218; Borough of Uniontown v. Commonwealth ex rel. Veech, 10 Id. 293; Commonwealth ex rel. Hamilton v. Select and Common Councils of Pittsburgh, Id. 496.

A father is the natural guardian of the person of his minor child, and charged with the duty of promoting its education. This proceeding is for the benefit of his child, as well as in furtherance of his parental duty. The relator therefore has a greater right in the object sought, than is possessed by the public generally; and is the proper person to make this application: High on Extraordinary Legal Remedies, § 438. The learned judge therefore committed no error.

Judgment affirmed.

Sharswood, C. J., dissented.