Rice v. Gong Lum , 139 Miss. 760 ( 1925 )

^* Headnotes 1. Schools and School Districts, 35 Cyc., p. 819; As to who is a negro, mulatto, or person or color within statute not specifically defining the same, see notes in 31 L.R.A. (N.S.) 180, L.R.A. 1915A, 828; 24 R.C.L., pp. 655-657; 2. Schools and School Districts, 35 Cyc., p. 819; 3. Schools and School Districts, 35 Cyc., p. 819; 4. Schools and School Districts, 35 Cyc., pp. 849, 850. The appellees were plaintiffs in the court below and filed a petition for a mandamus against the trustees of a consolidated public school for the white race in Bolivar county, Miss., known as the Rosedale consolidated school, and situated at Rosedale in Bolivar county, Miss., against the county superintendent of education, and against the state superintendent of education, to compel said trustees and said county and state superintendents of education to admit Martha Lum, a minor of school age, of pure Chinese and Mongolian race, to rights of scholarship in said public school.

It is alleged that Martha Lum is a resident of said school district, and is a native born citizen of the United States, that her parents were residents of the United States and engaged in the mercantile business, and not directly or indirectly connected with the consular service, or any other service, of the government of China, or any other government, at the time of her birth; that she sues by her next friend, Chew How, who is also a native born citizen of the United States and of the state of Mississippi, and her father joined in the said petition as parent.

It is alleged that said Martha Lum is a girl of good moral character between the ages of five and twenty-one years, and an educable child, and that it is her father's duty under the law to send her to school, and that she desires to attend the Rosedale consolidated school; that at the opening of said school she appeared as a pupil, but was notified by the principal of the said public school in charge thereof that she would have to return home and would not be allowed to attend that school. It is further alleged that she was excluded from said public school on the ground that she was of Chinese descent, and therefore not a member of the white or Caucasian race, and that said order excluding her from attendance at said public school was made in obedience to instructions from the state superintendent of education of Mississippi.

It is further alleged that there is no school maintained in that district of Bolivar county for the education of Chinese children and none in the county. It is further alleged that the Constitution of the state requires that public schools be conducted, and that the state provides a general fund from the state treasury to maintain a school term of at least four months of each year, but that any county or separate school district may levy an additional tax to maintain the public schools for a longer time than the four-month term, and that said common school fund shall be distributed among the several counties and separate school districts in proportion to the number of educable children in each in a manner provided by law, and that the state Constitution (Const. 1890, section 201) provides that it is the duty of the legislature to encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement, by establishing a uniform system of free public schools by taxation or otherwise, for all children between the ages of five and twenty-one years, and as soon as practicable to establish schools of higher grade; that in obedience to the said provision of the Constitution the legislature provided by law for the establishment and for the payment of the expenses of the Rosedale consolidated school.

It is further averred that petitioner's father is a taxpayer in said district and county, and helps support and maintain said school; that the said Martha Lum is an educable child between the ages of five and twenty-one years, and a resident within said district, and is entitled to attend said school as a pupil; that it is made the duty of her father to have her attend school, and that this is the only school conducted in said district available for her as a pupil, and that the right to attend said school is a valuable right; that she is not a member of the colored race, nor is she of mixed blood, but that she is of pure Chinese origin and descent, and a native born citizen of the United States and of the state of Mississippi, and of the Rosedale school district, and therefore an educable child and qualified to attend said school and has a right to do so, but that she is advised that on notification of the said state superintendent of education to the county superintendent of education and to the board of trustees of said public school that said trustees of the Rosedale consolidated school deny her the right to attend said school solely and exclusively on the grounds above stated, and that said exclusion from said public school denies her rights secured to her as a citizen of the state of Mississippi; that she is deprived thereof without due process of law, and on account of her being of Chinese descent, and therefore a member of the Mongolian race, and it is alleged that this is done without due protection of the law and contrary to the provisions of the Constitution of the United States, wherefore petitioner prays for a writ of mandamus to compel said public school authorities to admit said Martha Lum to attend said public school at Rosedale as a pupil.

The petition was demurred to on a number of grounds, among others, that the bill shows on its face that complainant is a member of the Mongolian or yellow race, and therefore not entitled to attend the public schools provided by law in the state of Mississippi for children of the Caucasian or white race. The demurrer was overruled and a writ of mandamus granted, commanding said school authorities to permit petitioner, Martha Lum, to attend said Rosedale consolidated school as a pupil thereof.

Section 207 of the state Constitution of 1890 provides: "Separate schools shall be maintained for children of the white and colored races." This section of the Constitution is followed by statutes of the state providing for such schools, using the term "white and colored" throughout so far as the law applies to the public schools.

By statute it is provided that all the territory of each county of the state shall be divided into school districts separately for the white and colored races; that is to say, the whole territory is to be divided into white school districts, and then a new division of the county for colored school districts. In other words, the statutory scheme is to make the districts outside of the separate school districts, districts for the particular race, white or colored, so that the territorial limits of the school districts need not be the same, but the territory embraced in a school district for the colored race may not be the same territory embraced in the school district for the white race, and vice versa, which system of creating the common school districts for the two races, white and colored, do not require schools for each race as such to be maintained in each district, but each child, no matter from what territory, is assigned to some school district, the school buildings being separately located and separately controlled, but each having the same curriculum, and each having the same number of months of school term, if the attendance is maintained for the said statutory period, which school district of the common or public schools has certain privileges, among which is to maintain a public school by local taxation for a longer period of time than the said term of four months under named conditions which apply alike to the common schools for the white and colored races.

In Moreau v. Grandich, 114 Miss. 560, 75 So. 434, we held that the right to attend the public schools was a legal right and enforceable in the courts, and that mandamus was the proper remedy to enforce the rights secured under the school law. We also held that the term "white" used in the above section of our Constitution means members of the Caucasian race. It was also said that the word "colored" included, not only negroes, but persons of mixed blood. In the argument in the present case it is insisted that this definition of "colored" limited and restricted the term "colored" entirely to persons of the negro race or who were of negro descent. We think a careful reading of the opinion in the Moreau v. Grandich case, supra, in the light of the statement of the facts, shows that the court did not intend to restrict the term "colored" to persons having negro blood in their veins or who were descendants of negroes or of the negro race. For prudent reasons the court did not go beyond the calls of that case in reference to this term.

In order to determine the meaning of the terms used in the above section of the Constitution, it will be necessary to consider other expressions in the same Constitution, and also legislation of the state bearing on the segregation of the races. In section 263 of the Constitution it is provided that marriage of a person of the white race with a negro or mulatto or with a person having one-eighth or more of negro blood shall be unlawful and void. It will be noted in this section that the terms "negro" and "mulatto," "or person who shall have one-eighth or more of negro blood," were used, and the constitutional prohibition against marriages between the races in confined to negroes and those having one-eighth or more of negro blood. Moreau v.Grandich, supra, we held that one-eighth of negro blood provided in the section relating to intermarriages was not controlling in fixing the status of the races for school purposes under section 207 of the Constitution. It will also be noted that section 207 of the Constitution, instead of using the word "negro" or having a specific quantity of negro blood, uses the word "colored" in describing the opposite races from the white race.

In section 2859, Code of 1892, just two years after the Constitution of 1890 was adopted, the legislature prohibited marriages between the white and Mongolian races, and between persons of the white race and persons having one-eighth or more of Mongolian blood. The same section also prohibited intermarriages between persons of the white race with those of negro blood or one-eighth negro blood, the prohibition with reference to marriages being identical in each case as to the negro and Mongolian races.

It will be noted further that neither section 263 of the Constitution nor section 2859 of the Code of 1892, which statute has been constantly in force since that date, prohibits any marriage or social relations between the negro and Mongolian races, and they are left free to maintain such social, including marriage, relations as they see proper to enter into.

Why did the Constitution use the term "negro" in one section and the term "colored" in the other section?

To all persons acquainted with the social conditions of this state and of the Southern states generally it is well known that it is the earnest desire of the white race to preserve its racial integrity and purity, and to maintain the purity of the social relations as far as it can be done by law. It is known that the dominant purpose of the two sections of the Constitution of our state was to preserve the integrity and purity of the white race. When the public school system was being created it was intended that the white race should be separated from all other races. It is true that the negro race was the only race of consequence so far as numbers were concerned. There were then some other races living within the state, of course. So far as we have been able to find, the word "white," when used in describing the race, is limited strictly to the Causcasian race, while the word "colored" is not strictly limited to negroes or persons having negro blood.

One of the definitions given to the word "colored," as applied to race, is "of a dark skin or non-Caucasian race." Standard Dictionary. The same definition is practically given by Mr. Webster in his dictionary. The word "white," as applied to race, where not affected by statutory definition, is universally limited to the Caucasian race.

The United States courts have often dealt with the term "white race" when passing on questions of naturalization; it being provided by federal statutes originally that only persons of the white race could be naturalized. But, after the Civil War, the statute was amended so as to provide for the naturalization of aliens of African nativity and to persons of African descent. In the decisions of the supreme court of the United States it is expressly held that Mongolians do not come within the term "white" as used in reference to race. See The Case of Ah Yup, 5 Sawy. 155, Fed. Cas. No. 104, which has subsequently been followed by that court. See, also, Ozawa v. United States,260 U.S. 178, 43 S.Ct. 65, 67 L.Ed. 199, and Yamashita v.Hinkle, 260 U.S. 199, 43 S.Ct. 69, 67 L.Ed. 209.

In its opinion in the Ozawa case, supra, the court said: "The question then is, Who are comprehended within the phrase `free white persons'? Undoubtedly the word `free' was originally used in recognition of the fact that slavery then existed, and that some white persons occupied that status. The word, however, has long since ceased to have any practical significance and may now be disregarded.

"We have been furnished with elaborate briefs in which the meaning of the words `white person' is discussed with ability and at length, both from the standpoint of judicial decision and from that of the science of ethnology. It does not seem to us necessary, however, to follow counsel in their extensive researches in these fields. It is sufficient to note the fact that these decisions are, in substance, to the effect that the words import a racial, and not an individual, test, and with this conclusion, fortified as it is by reason and authority, we entirely agree. Manifestly the test afforded by the mere color of the skin of each individual is impracticable, as that differs greatly among persons of the same race, even among Anglo-Saxons, ranging by imperceptible gradations from the fair blond to the swarthy brunette, the latter being darker than many of the lighter hued persons of the brown or yellow races. Hence to adopt the color test alone would result in a confused overlapping of races and a gradual merging of one into the other, without any practical line of separation. Beginning with the decision of Circuit Judge SAWYER, in re Ah Yup (1878), 5 Sawy. 155, Fed. Cas. No. 104, the Federal and state courts, in an almost unbroken line, have held that the words `white person' were meant to indicate only a person of what is popularly known as the Caucasian race. Among these decisions, see, for example, Re Camille, 6 Sawy. 541, 6 F. 256; Re Saito, 62 F. 126; Re Nian, 6 Utah, 259, 4 L.R.A. 726, 21 P. 993; Re Kumagai, 163 F. 922; Re Yamashita,30 Wn. 234, 237, 59 L.R.A. 671, 94 Am. St. Rep. 860, 70 P. 482;Re Ellis, 179 F. 1002; Re Mozumdar, 207 F. 115, 117; ReSingh, 257 F. 209, 211, 212; and Re Charr, 273 F. 207. With the conclusion reached in these several decisions we see no reason to differ. Moreover, that conclusion has become so well established by judicial and executive concurrence and legislative acquiescence that we should not, at this late day, feel at liberty to disturb it, in the absence of reasons far more cogent than any that have been suggested. United States v. MidwestOil Co., 236 U.S. 459, 472, 59 L.Ed. 673, 680, 35 Sup. Ct. Rep. 309.

"The determination that the words `white person' are synonymous with the words `a person of the Caucasian race' simplifies the problem, although it does not entirely dispose of it. Controversies have arisen and will no doubt arise again in respect to the proper classification of individuals in border-line cases."

In the case of Yamashita, 30 Wn. 234, 70 P. 482, 94 Am. St. Rep. 860, the court said: "The courts, Federal and state, have uniformly determined that Chinese are not eligible to naturalization, because not white persons."

In the same opinion the court discusses the divisions of the human race and adopts that of Blumenbach, who classifies the races as follows: "(1) The Caucasian, or white race, to which belong the greater part of the European nations and those of Western Asia; (2) the Mongolian, or yellow race, occupying Tartary, China, Japan, etc.; (3) the Ethopian, or negro (black) race, occupying all Africa, except the North; (4) the American, or red race, containing the Indian of North and South America; and (5) the Malay, or brown race, occupying the islands of the Indian Archipelago."

See, also, 7 Cyc. 167; Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; and Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 738. In Adelle v. Beauregard (1810), 1 Mart. (O.S. La.) 183, at page 184, in discussing the question of the color of persons as persons of color, the court said: "Persons of color may have described from Indians on both sides, from a white parent, or mulatto parents in possession of their freedom."

In State v. Chavers, 50 N.C. 11, the court was called on to construe the phrase "free persons of color" as used in a statute of that state which provided: "That all free persons descended from negro ancestors to the fourth generation inclusive, though one ancestor of each generation may have been a white person, shall be deemed free negroes and persons of mixed blood."

The defendant was indicted as a "free person of color" for carrying a shotgun about his person contrary to that statute. The indictment was demurred to on the ground that the phrase "free person of color" might apply to other persons than those of negro descent. At page 15, 50 N.C., the court said: "Free persons of color may be, then, for all we can see, persons colored by Indian blood, or persons descended from negro ancestors beyond the fourth degree. The indictment then, in the present case, may embrace a person who is not a free negro within the meaning of the act, and for that reason, it cannot be sustained."

In the case of People v. Hall, 4 Cal. 399, the supreme court of California had under consideration the question of the admissibility of evidence against a white person by a Chinaman, a witness, under a statute which provided in one section that no Indian or negro shall be allowed to testify as a witness in any action in which a white person is a party and another statute which provided: "No black or mulatto person, or Indian shall be allowed to give evidence for or against a white person."

At page 403, 4 Cal. the court said: "The word `black' may include all negroes, but the term `negro' does not include all black persons.

"By the use of this term in this connection, we understand it to mean the opposite of `white,' and that it should be taken as contra-distinguished from all white persons.

"In using the words, `No black, or mulatto person, or Indian shall be allowed to give evidence for or against a white person,' the legislature, if any intention can be ascribed to it, adopted the most comprehensive terms to embrace every known class or shade of color, as the apparent design was to protect the white person from the influence of all testimony other than that of persons of the same caste. The use of these terms must, by every sound rule of construction, exclude every one who is not of white blood. . . . The word `white' has a distinct signification, whichex vi termini, excludes black, yellow, and all other colors. It will be observed, by reference to the first section of the second article of the Constitution of this state, that none but white males can become electors, except in the case of Indians, who may be admitted by special act of the legislature. On examination of the constitutional debates it will be found that not a little difficulty existed in selecting these precise words, which were finally agreed upon as the most comprehensive that could be suggested to exclude all inferior races.

"If the term `white,' as used in the Constitution, was not understood in its generic sense as including the Caucasian race, and necessarily excluding all others, where was the necessity of providing for the admission of Indians to the privilege of voting, by special legislation?

"We are of the opinion that the words `white,' `negro,' `mulatto,' `indian,' and `black person,' wherever they occur in our Constitution and laws, must be taken in their generic sense, and that, even admitting the Indian of this Continent is not of the Mongolian type, that the words black person,' in the fourteenth section must be taken as contradistinguished from white, and necessarily excludes all races other than the Caucasian."

In State v. Treadaway, 126 La. 300, 322, 52 So. 500, 508, 139 Am. St. Rep. 514, at page 531 (20 Ann. Cas. 1297), the court in discussing the meaning of the word "colored," after reviewing numerous statutes and decisions defining the term, says: "These decisions are authority that a negro is necessarily a person of color; but not that a person of color is necessarily a negro. There are no negroes who are not persons of color; but there are persons of color who are not negroes."

While the court in the Treadaway case, supra, reached the conclusion that under the Louisiana statutes and decisions the term "colored persons" was limited to negroes and those having negro blood, it recognized that the term "colored person" was not necessarily limited to negroes and those having an admixture of negro blood in their veins.

As shown by the above definitions the term "white" as used in section 207 of our Constitution is limited to the Caucasian race. We have found no definition to the contrary except where it was a legislative definition embraced either in a statute or a constitution. Some of the states have statutory definitions that make the term "white race" include other races. But when no such statutory definition exists all the authorities hold that the term "white" as applied to race does not embrace any other race than the Caucasian. On the other hand, the term "colored," as applied to race, may include any race other than the Caucasian or white race. Most of the states have defined by statutes what constitutes a "colored person" or a "colored race," and of course, where the statutes have defined these terms, the courts follow the statutory definition.

In our state no statute has defined the term "colored race," and, considering the policy of the state indicated above, we think that the constitutional convention used the word "colored" in the broad sense rather than the restricted sense; its purpose being to provide schools for the white or Caucasian race, to which schools no other race could be admitted, carrying out the broad dominant purpose of preserving the purity and integrity of the white race and its social policy.

It is said by the appellant that this court in the case ofHeirn v. Bridault, 37 Miss. 209, construed the phrase "free woman of color" as synonymous with "free negro," and that this definition is to be carried into the Constitution and so interpreted would mean the "negro race or persons having negro blood," and would not include a member of the Mongolian race. In the case of Heirn v. Bridault, supra, the court held that the phrase "free woman of color," as used in the instrument there under consideration, was synonymous with "free negro." But we do not think that this decision is authority for holding that the Constitution makers intended the phrase to be used in the limited and restricted sense. It is true that the general meaning of the words "colored person" is understood to refer to a negro or a person having negro blood. But that is not the only definition of the phrase "a colored person," and it is clear that the constitutional convention of 1890 was using every means at its command to protect and preserve the white race from admixture with other races.

We must construe the Constitution so as to give effect to the intention of its makers. Taking all of the provisions of the law together, it is manifest that it is the policy of this state to have and maintain separate schools and other places of association for the races so as to prevent race amalgamation.

Race amalgamation has been frowned on by Southern civilization always, and our people have always been of the opinion that it was better for all races to preserve their purity.

However, the segregation laws have been so shaped as to show by their terms that it was the white race that was intended to be separated from the other races. The legislature has in some of the statutes provided for special schools for the Indian race, and any other race unprovided for, but under the general school laws a number of pupils are required to create one of these special schools.

The legislature is not compelled to provide separate schools for each of the colored races, and, unless and until it does provide such schools and provide for segregation of the other races, such races are entitled to have the benefit of the colored public schools. Under our statutes a colored public school exists in every county and in some convenient district in which every colored child is entitled to obtain an education. These schools are within the reach of all the children of the state, and the plaintiff does not show by her petition that she applied for admission to such schools. On the contrary the petitioner takes the position that because there are no separate public schools for Mongolians that she is entitled to enter the white public schools in preference to the colored public schools. A consolidated school in this state is simply a common school conducted as other common schools are conducted; the only distinction being that two or more school districts have been consolidated into one school. Such consolidation is entirely discretionary with the county school board having reference to the conditions existing in the particular territory. Where a school district has an unusual amount of territory, with an unusual valuation of property therein, it may levy additional taxes. But the other common schools under similar statutes have the same power.

If the plaintiff desires, she may attend the colored public schools of her district, or, if she does not so desire, she may go to a private school. The compulsory school law of this state does not require the attendance at a public school, and a parent under the decisions of the supreme court of the United States has a right to educate his child in a private school if he so desires. But plaintiff is not entitled to attend a white public school.

Therefore the judgment of the court below will be reversed and the petition dismissed.

Reversed and dismissed.