Opinion - Reynolds

In 1879 a statute was passed (Laws 1879, ch. 81; Gen. Stat. 1901, §§ 6290-6296) with the following title:

"An act to amend an act entitled 'An act to incorporate cities of the first class,' approved February 24, 1868, and to authorize boards of education of cities of the first class to refund certain bonds."

Section 1 of this act reads as follows:

"Section seventy-five of the act entitled 'An act to incorporate cities of the first-class,' approved February twenty-fourth, eighteen hundred and sixty-eight, is hereby amended so that the same shall read and be as follows: Section 75. The board of education shall have power to elect their own officers, make all necessary rules for the government of the schools of said city under its charge and control, and of the said board, subject to the provisions of this act and the laws of this state; to organize and maintain separate schools for the education of white and colored children, except in the high school, where no discrimination shall be made on account of color; to exercise the sole control over the public schools and school property of said city; and shall have the power to establish a high school, and maintain the same in whole or in part, by demanding, collecting and receiving a tuition fee for and from each and every scholar or pupil attending such high school."
Section 2 amends section 76 of the act of 1868, which related to the organization of the board of education, the selection of its officers, and of a superintendent of schools, the date of the termination of the fiscal year, and to official reports to be made to the board. Sections 3, 4, 5, 6 and 7 embody new legislation on the subject of refunding bonds. This statute must furnish authority for the order of the board of education in controversy or none exists.

It is contended that, since the law of 1879 purports to amend a statute already repealed by implication, it is void, and authorities are cited to that effect. (Blakemore v. Dolan et al., 50 Ind. 194; Hall et al. v. Craig et al., 125 id. 523, 529, 25 N. E. 538; State, ex rel. Seward Co., v. Benton, 33 Neb. 823, 51 N. W. 140; L. & N. R. R. Co. v. City of East St. Louis, 134 I11. 657, 25 N. E. 962.)

In this state the constitution contemplates that repealed acts may be revived if only the new enactment contain all the revived matter and do not merely make reference to it. (Art. 2, § 16.) The requirement that acts amendatory of sections shall include the entire section or sections amended is designed to prevent amendments by mere reference and amendments by merely inserting or striking out; but there is no constitutional inhibition upon the legislature's adopting a repealed law as the basis of a new enactment, and if it should choose to employ such a method of registering its purpose that fact alone ought not to defeat its will. Statutes are not to be so lightly nullified. Although they were no longer operative as laws, sections 75 and 76 remained upon the records in the office of the secretary of state, and continued to be cognizable from the statute-books in which they had been printed. Their subject-matter continued to be open fields for legislation. It is perfectly manifest that the legislature intended to reenact their provisions with such modifications as were necessary to meet the requirements of the inhabitants of cities of the first class, and intended the law upon those subjects thereafter to be as disclosed by sections 1 and 2 of the act of 1879. This intention must, therefore, be given full effect. There is no doubt that this may be done whenever the amended section retains its place in the original act. (The State v. Brewster, 39 Ohio St. 653; Jones v. Commissioner of the State Land Office, 21 Mich. 236; Basnett v. City of Jacksonville, 19 Fla. 664; Commonwealth v. Kenneson, 143 Mass. 418, 9 N. E. 761.) And in other cases where the power of the legislature over the subject-matter exists and its purpose is plain, the last law has been allowed to stand as an independent enactment.

In People, ex rel. Strough, v. Canvassers, 143 N. Y. 84, 88, 37 N. E. 649, affirming People v. Board of County Canvassers, 28 N. Y. Supp. 871, it was said:

"But this case may rest, for its decision, upon the broad principle that chapter 414 of the Laws of 1883 was a reenactment of the law, as contained in the act of 1856, and, as an independent statute, is unaffected by considerations of whether the provision of law, which it purports to amend has been repealed or not by previous statutes. It is the duty of the court, when passing upon an act of the legislature, to uphold and give effect to it, where it is possible and when the legislative intent is plain, and there is no room for doubt here as to what the legislature intended. . . . The enactment of this law is put into the form of an amendment of a law which was standing upon the statute-books, and whether that earlier law, by force of subsequent legislation, had become inoperative is wholly immaterial. The only question is, Has the legislature in the enactment complained of expressed its purpose intelligibly and provided fully upon the subject? If it has, then its act is valid and must be upheld. That is the case here. The act of 1883 contains all that is provided for in the particular section of the act of 1856, and gives full power to the boards of supervisors, with respect to the formation of school commissioners' districts. A law thus explicit and complete may not be disregarded, or invalidated, because of a possible mistake of the legislature with respect to the existence of the statute, in amendment of which the act is passed. It is an enactment of a law in any view."

See, also, State v. Warford, 84 Ala. 15, 3 South. 311; State v. Corbett, 61 Ark. 226, 32 S. W. 686; Harper v. State, 109 Ala. 28, 19 South. 857; Columbia Wire Co. v. Boyce, 44 C. C. A. 588, 104 Fed. 172. The same principle is recognized inferentially in Wall v. Garrison, 11 Colo. 515, 19 Pac. 469.

It is further urged that the act of 1879 cannot stand because the title is insufficient. If the law of 1868 had not been repealed no doubt whatever would exist that the title sufficiently expresses the subject of the act, and such repeal cannot render that subject any more indefinite. That the act contains but one subject has already been determined by this court. (Board of Education v. The State, 26 Kan. 44.)

Finally, it is said that the law of 1879 was repealed by chapter 37, Laws of 1881, entitled "An act to incorporate and regulate cities of the first class, and to repeal all prior acts relating thereto." While this title expresses a purpose to repeal all prior legislation relating to cities of the first class, the body of the act does not do so, and repeals are not accomplished by titles. The repealing clause refers expressly to a law of 1874, and beyond that repeals nothing except conflicting acts and parts of acts. No reference is made anywhere in the law to schools, and hence the statute of 1879, devoted solely to that subject, is not in conflict with it.

From this it appears that the legislature has expressly empowered the board of education of the city to make the order assailed. Was it competent for the legislature to do this? The question is solely one of power and not of policy. Whether, in view of the history of this state, the traditions of its people, the composition and quality of its citizenship, its political and social ideals, and the relations of the white and colored people of large cities to each other, such a law is wise or beneficent this court is forbidden to investigate. It can only declare if the statute comports with the constitutional guaranties established for the protection of the citizen against depredations upon his rights.
Counsel for plaintiff assert that the statute violates section 2 of article 6 of the state constitution, which reads as follows:

"The legislature shall encourage the promotion of intellectual, moral, scientific and agricultural improvement, by establishing a uniform system of common schools, and schools of a higher grade, embracing normal, preparatory, collegiate and university departments."

It is said that the word "uniform" means "the same throughout the state;" that "common" refers to the people as a whole and means "open to all," and that the establishment of separate schools for white and colored children in cities of the first class only is repugnant to both requirements. It is perfectly plain, however, that a uniform system of schools means uniform educational facilities. Such facilities may be maintained with great simplicity of organization in sparsely settled regions, while the most elaborate machinery is necessary to meet the requirements of dense populations in cities. The system of schools, however, is uniform. Divisions and classifications of children in various respects may be necessary in the city and not in the country in order to obtain the best results from the facilities afforded. The facilities themselves, however, remain uniform. The system of educational opportunities, advantages, methods and accommodations is uniform, constant, and equal, whether availed of by children in a rural district or a city ward; whether by males or females; whether by blacks and whites commingling, or by them separately; and whether race classification be made in one grade, or department, or city, or county, or in many.