Reynolds v. Board of Education of the City of Topeka
66 Kan. 672 (1903)
WILLIAM REYNOLDS v. THE BOARD OF EDUCATION
OF THE CITY OF TOPEKA.
No. 13,140. (72 Pac. 274.)
SYLLABUS BY THE COURT.
View a scanned copy of the Reynolds opinion.
1. CONSTITUTIONAL LAW--Separate Schools for White and Colored Children--Act of 1879. Chapter 81, Laws of 1879 (Gen. Stat. 1901, §§6290-6296), providing that boards of education in cities of the first class shall have power to organize and maintain separate schools for the education of white and colored children, except in the high school, is not invalidated by the fact that it purports to amend a former statute which had previously been repealed by implication.
2. ----Subject Clearly Expressed in Title. The act referred to is not violative of section 16 of article 2 of the constitution, providing that no bill shall contain more than one subject, which shall be clearly expressed in its title.
3. ----System is Uniform. Such act does not violate section 2 of article 6 of the constitution, providing for the establishing of a uniform system of common schools.
4. ----Not Violative of Fourteenth Amendment. Such act does not violate the fourteenth amendment to the constitution of the United States, prohibiting any state from denying to any person within its jurisdiction the equal protection of the laws.
Original proceeding in mandamus. Opinion filed April 11, 1903. Writ denied.
G. C. Clemens, and F. J. Lynch, for plaintiff.
J. W. Gleed, J. L. Hunt, and Gleed, Ware & Gleed, for defendant.
The opinion of the court was delivered by
BURCH, J.: The board of education of the city of Topeka, a city of the first class, provides for the education of colored children in schools separate from those maintained for white children, in all grades below the high school. The plaintiff, a colored man, a citizen of the United States, and a resident of the city, presented his son at a school which white children only were allowed to attend, and demanded that he be received and taught there. The child was eligible to instruction at that school, except for his color, and on this account was refused admission, and consigned to a school in the same neighborhood provided for the colored race, and from which white children were excluded. Thereupon this proceeding was brought to compel the board, by writ of mandamus, to admit the colored boy to the white school.
In Board of Education v. Tinnon, 26 Kan. 1, and Knox v. Board of Education, 45 id. 152, 25 Pac. 616, 11 L. R. A. 830, it was decided that, without clear legislative authority, boards of education in cities of the second class have no power to establish separate schools for the education of white and colored children, and the same express legislative warrant must appear for such action on the part of a board of education of a city of the first class, or it cannot be sustained. Does such a statute exist?
The question is not free from difficulty. Chapter 18 of the Laws of 1868 is entitled "An act to incorporate cities of the first class." The chapter is divided into six articles relating to various subjects. Article V is devoted to the general topic of the maintenance of schools, and covers all the details of that subject. Section 75 of that article reads as follows:
"The board of education shall have power to select their own officers; make their rules and regulations, subject to the provisions of this act; to organize and maintain separate schools for the education of white and colored children; to establish a high school whenever, in their opinion, the educational interests of the city demand the same; and to exercise the sole control over the public schools, and school property of the city."
In 1876 the legislature, by an act entitled "An act for the regulation and support of common schools," codified the school laws of the state, and embodied in one comprehensive chapter (No. 122) all matters pertaining to the subject expressed in that title. Article X of this chapter relates to public schools in cities of the first class, and provides that all cities of more than 15,000 inhabitants shall be governed thereby. Section 4 of this article is the counterpart of section l5 of article V, chapter 18, Laws of 1868, and reads as follows:
"The board of education, shall have power to select their own officers; to make their rules and regulations, subject to the provisions of this act; to establish a high school, whenever in their opinion the educational interests of the city demand the same; and to exercise the sole control over the public schools and school property of the city."
It will be observed that the clause of former section 75, authorizing the organization and maintenance of separate schools for the education of white and colored children, is omitted from this section. Since the law of 1876 was intended to be a complete revision of the school laws of the state, the law of 1868 upon that subject was repealed by implication, and with it the authority to establish separate race schools. While many provisions of the former law may be found in the revision, this did not operate to preserve the divisions of the statute containing them. So far as the provisions of the new law are the same as those of the old, they are to be construed as a continuation of such provisions, and not as a new enactment. (Gen. Stat. 1901, § 7342.) But this applies to provisions only, and not to chapters, articles or sections, as such, which are eliminated by the repeal.