Opinion - Woolridge

"From the foregoing findings of fact I deduce the following conclusions of law

"1. That the acts of the defendants herein, in separating the colored children from the white children and placing them in a room by themselves, taught by a colored teacher, where all the grades from primary to sixth grade were taught, was and is unwarranted by any of the laws of this state and a violation of the rights of the plaintiffs herein and of those whom they represent.

"2. That a permanent writ of mandamus issue herein as prayed for by the plaintiffs."
1. The defendants ask that that portion of the ninth finding which reads, "Miss Grigsby, a colored woman who was at the time working as a domestic in the home of the president of the Board of Education," and all of the fifteenth, sixteenth, seventeenth, eighteenth and twentieth findings, be stricken out. They argue that the commissioner misconceived his duties, that he considered it his duty and right to invade the province of the school authorities and determine what was the proper manner to run the schools of Galena; and argue further that it was the duty and province of the school superintendent and of the board of education to determine this matter, and that it was not within the function of the commissioner to control the discretion of the superintendent and the board of education, or to suggest to them, how they should run the schools.

In order for the commissioner and for this court to determine whether or not the pupils of the East Galena school had been separated on account of race or color it was necessary for the commissioner to know, and it is necessary for this court to know, everything that the superintendent of schools and the board of education did with reference to this school. The findings of which complaint is made show these things. It was proper for the commissioner to hear evidence on these questions and for him to make findings concerning them. The fact that the teacher employed for the colored children had been, prior to her employment, working as a domestic in the home of the president of the board of education is immaterial. It neither helps nor harms either side of this controversy and may be properly disregarded at this time.

2. The defendants requested that the commissioner make the following additional findings of fact:

"1. That at the time the colored children were placed in Miss Grigsby's room by the school superintendent with the approval of the school board, there was in the opinion of the superintendent a congested condition in the other rooms; that is to say, there were more scholars in the other rooms than the teacher could properly care for in the opinion of the superintendent and the school board.

"2. That in the opinion of the school superintendent, by reason of a fewer number of scholars in Miss Grigsby's room she could teach the first six grades as advantageously to the pupils as the teachers in the other rooms who had fewer grades to teach, by reason of her having a less number of pupils than the teachers in the other rooms."

The commissioner refused to make these findings for the reason that in his judgment the findings requested were not within the issues made by the pleadings; that there was no allegation in the petition challenging the sufficiency of the school taught by Miss Grigsby; that the charge, in substance, was that the white and colored children were separated; that this charge was denied; that there was no plea of justification; and that the issues on the trial were on the one question of fact raised by the pleadings: Were the white and colored children separated? An examination of the pleadings discloses that the reasons given by the commissioner for his refusal to make these findings were correct. The superintendent of schools and board of education did not undertake to justify or excuse the separation of the pupils along the line of color, but denied doing it.

3. The authority of boards of education to separate colored pupils from white ones in schools under their control is settled in this state. They do not have such authority unless it is expressly given by statute. (Board of Education v. Tinnon, 26 Kan. 1; Knox v. Board of Education, 45 Kan. 152, 25 Pac. 616; Reynolds v. Board of Education, 66 Kan. 672, 673, 72 Pac. 274; Cartwright v. Board of Education, 73 Kan. 32, 84 Pac. 382; Rowles v. Board of Education, 76 Kan. 361, 91 Pac. 88.) The findings of the commissioner show that the defendants separated the plaintiffs' children and other colored pupils attending the East Galena school from the white children attending the same school on account of their race and color. This was without authority of law.

A peremptory writ of mandamus will issue as prayed for.