Summary
FROM the chancery court of Jasper county.
HoN. Samuel Whitmaw, Jr., Chancellor.
Goins, appellee, a negro, was complainant in the court below; McFarland, tax collector, and Thigpen, treasurer, respectively, of Jasper county, appellants, were defendants there. From a decree overruling the defendants’ demurrer to complainant’s bill, the defendants appealed to the supreme court.
Goins, the appellee, enjoined the appellants, tax collector and treasurer respectively of Jasper county, from collecting a special tax levied by the board of supervisors for the support and maintenance of an agricultural high school established in the coiinty under Laws 1908, ch. 102, p. 92, authorizing a county to establish an agricultural high school for instruction of its white youth and to support the school by a tax on the taxable property in the county. The bill of complaint alleged that ap-pellee is a resident citizen and freeholder of the county, a negro, having children of educable age, and that the law in question, under which the school was established, is unconstitutional in that it' abridged the privileges and immunities of himself and other citizens of the county and state of his race and denied to himself and them the equal protection of the law.
Tbe appellee, although a freeholder and tax payer of the county, has not as yet paid to the county tax collector any taxes which may be used, under the new statute under consideration, toward the establishment of an agricultural high school. Can he, then, institute this proceeding and maintain suit successfully against the county tax collector and county treasurer? It is a serious matter to enjoin a county treasurer from paying out county funds.
But conceding that he, as a tax payer of the county, can legally institute this suit, is he entitled to any relief? It is a well settled doctrine that in the administration of our school law a great deal must be left to the discretion of the school authorities as to the manner in which they will administer the law in order to bring about the best results under’our system of public schools. If, in a specified town, there were no white children under the age of sixteen years, and all such children were sufficiently mentally advanced to attend a grammar school; and in the same town there were no negro children over seven years of age, but a large number under such age, mentally prepared to attend only a school of primary grade; could it reasonably be contended that it would be unconstitutional for the public school authorities in control in such municipality to establish a grammar school for the white children of the town and only a primary school for the negro children of the town? While it is the purpose of the public school system to afford to the children of edueable age equal facilities, no court has ever held that the duty devolves upon the school authorities to furnish to all children identical advantages.
The appellee does not allege in his bill of complaint that there are not schools for the negro children in Jasper county suitable to their needs and proper for the grades of their mental advancements and proficiencies. He does not pretend to assert that .there are not negro public schools in the community where he and bis family live wbicb bis children can easily and habitually attend. If it be granted that be and bis family bave proper school facilities, be should be entitled to no relief. The mere fact that the statute in question affords certain school opportunities to children of the white race cannot wrongfully affect him if it be conceded that his own children, and other negro children of the county, have proper and ample school facilities in the way of attendance at public schools for their own color. One who invokes the jurisdiction of equity to arrest the performance of a duty imposed by the legislature upon a public officer, must show conclusively not only that the act about to be performed is unconstitutional, but that he will be directly, injured by it. Bwrnham. v. Sumner, 50 Miss. 517; Virden v. Bowers, 55 Miss. 1; Gibbs v. Green, 54 Miss. 592; Beck v. Allen, 58 Miss. 143. An agricultural high school established in any county is either a part of the system of free public schools provided for by article 8, of our state constitution, or sueh-,a .school is not a part of that system. But the statute in question is constitutional, whether the school established under it be considered as a part of the public school system or as independent of the public school system.
Suppose we consider such school, when established, to be a .part of the public school system. Then it follows that the only .section of our state constitution which such statute can possibly violate is section 201, providing that it shall be 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 grades. But, in the administration of the law pertaining to our public school system, the widest discretion must be allowed to the authorities upon whom devolve the duty of administering the law so as to achieve the best results. The ■“uniform system of free public schools” mentioned in section.201 must not be interpreted to mean one wbere tbe facilities afforded to all tbe children of educable age, wbo are tbe beneficiaries of tbe system, shall be identical advantages or facilities. Equality of facilities means tbe providing at public expense of opportunity to attend a school established by tbe state suitable to tbe grade of advancement of tbe pupil wbo attends; and, accordingly, tbe providing of schools of different grades to meet tbe necessities of different students will not be held to be an act violative of our state constitution.
If, now, we consider such agricultural high school, when established, to be not a part of tbe public school system, it yet follows that tbe statute is not unconstitutional. It is true that tbe state constitution, sec. 201, provides that it shall be tbe duty of the legislature “as soon as practicable to establish schools of higher grade,” but evidently it was contemplated by such provision of this constitutional section that if schools of higher •grades were established as a part of the public school system, their establishment would be uniform over the state. A system could hardly be said to be uniform which was in operation in perhaps only twelve of the more than seventy counties of our state. And if such a school is not a part of the public school system, then the legislature has a right to appropriate money for that purpose, not because the school is a part of the public-school system, but because, not being a part of such system, it is yet a worthy and deserving object entitled to favor and support at the hands of the state. The matter of the establishment of an agricultural high school in each county is not made mandatory by the statute, as doubtless would be done if the institution fell within the meaning of the phrase, “schools of higher grade,” but its establishment is left to be determined by the judgment of the county board of education or of the people themselves in each county.
Under sec. 201 of our constitution, the electors of the county are not prohibited from establishing schools of higher grade independently of tbe public school scheme. Otlcen v. Lamken, 56 Miss. 758; Chrisman v. BrooJchaven, 10 Miss. 411.
A case very similar to the case at bar has been before the supreme court of the United States for decision, having been carried there on the theory that the action of a county board of education on the particular facts of that case was in violation of the fourteenth amendment to the constitution of the United States. We refer to Cummings v. County Board of Education, 175 U. S. 528, 44 L. Ed. 262.' It was shown, in the case cited, that there were sixty negro children entitled to attend a high school, and three hundred negro children entitled to attend an intermediate school; that the school board, in the exercise of its discretion, not having money enough to maintain both schools, ceased to extend support to the high school for negro children but maintained an intermediate school for the three hundred negro children; and at the same time continued to maintain a high school for white children. It was held by this high tribunal that there was no denial to colored persons of the equal protection of the law or equal privileges of citizens of the United States.
No state can deny to any citizen of the United States within its jurisdiction the equal protection of the law, or make or enforce any law abridging the privileges and immunities of such citizen. Any legislation which discriminates against any particular race or class of persons must be held to be in violation of the Constitution of the United States. Since the adoption of the Fourteenth Amendment to such Constitution, any public school system devised by our state must make equal provision for the education of all children of school age, irrespective of race or color.
The classification of pupils on the basis of race or color, and their education in separate public schools, involve questions of domestic policy wbicb are witbin tbe discretion and control of state legislation, but only so long as the facilities and accommodations provided for all pupils, children of the citizens of our state, are substantially equal. Clement v. Everest, 29 Mich. 19; 4th Edition High on Injunctions, pages 1312 to 1316, vol. 2; Harney v. Indianapolis B. Co., 32 Ind. 244; 8 Cyc. 800; Rathbome v. Wirth, 6 N. T. App. Div. 277; 40 N. T. Suppl. 535, 74 N. T. State, 962; 7 Cyc. 166', 167; Pluiit v. Commissioners of Gaston County, 55 Am. Hep. 638; Cory v. Carter, 17 Am. Rep. 738.
The statute in question is certainly in contravention of the Fourteenth Amendment to the United States Constitution. The first section of the statute provides for the establishment of an agricultural high school for the purpose of “instructing the white youth of the county” in high school branches. None except youth of the white face can attend such school. The second section of the statute provides that the county board of supervisors shall have the power to levy a tax on the taxable property of every body in the county for the support of such school established in the county. Accoi’dingly, while only children of the white race can attend such school, the property of the black race as well as the property of the white race can be taxed, under the provisions of the second section of the statute, to support and maintain the school. It is accordingly self evident that this will abridge the privileges and immunity of the .negro citizens of Jasper county. Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664; Claybroolc et al. v. City of Owensboro, 16 Eed. 297; State v. McCann, 21 Ohio St. 210 ; Ward v. Flood, 48 Oal. 51; Farrow v. State, 91-Miss. 509.
The underlying thought of appellee’s bill of complaint is that under the Constitution of the State of Mississippi and of the United States, the white race and the colored race are equal, in so far as their legal rights are concerned, before the laV; and that the state legislature had no right to impose a school tax in support of a class of institutions from which, by the •expressed enactment of the law itself, the colored race was to be excluded.
The appellee’s right to institute this suit is clearly apparent. He is shown in the bill of complaint to be a resident citizen and property holder of Jasper county. As such he is a tax payer. Code 1906, § 533, provides that the chancery court shall have jurisdiction of suits by one or more tax payers in any ■county, city, town, or village, to restrain the collection of any taxes levied or attempted to be collected without authority of law.
It is true that the bill of complaint does not recite that there •are any negro children in Jasper county who would be qualified to -attend such a school as is contemplated by the statute in question; and that the bill fails to show that appellee has •any children qualified to attend such school. But the silence of the bill as to these matters in no way limits the jurisdiction of the chancery court to entertain this suit. The question of the constitutionality of this statute, which is state-wide in its operation, is not to be determined by the local conditions in Jasper county. Any citizen of this state, whose property is about to be made subject to taxation to help support a' school established under this statute, has a legal right to attack its constitutionality.
We, of course, do not contend that it is not within the power of the state to enact laws providing separate schools for the two races, or providing separate accommodations and utilities, of like degree, for the two> races. Berea College v. Kentucky, 211 U. S. 45, 53 L. Ed. 81. But this statute now under consideration creates a public school for white children only and imposes taxes on the taxable property of citizens of the negro race as well as on the taxable property of citizens of the white race. No agricultural biglr school for negro children can. be estab- ' lished or maintained under the statute. The authorities cited, by opposing counsel are not in point.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
