Opinion - Tinnon

In the case at bar, the school board of the city of Ottawa has enacted a rule of which the relator complains. It is a rule plainly discriminating against the relator on account of his race or color, pointing out himself and others of his class, by reason of their color, as not being eligible to school privileges with white children.

It is no answer to the proposition to say that white children are excluded from the African school room. It is evident as to the purpose of the rule. Under the construction which the supreme court of the United States has put upon the fourteenth amendment of the constitution, it is evident to every mind that the legislature of the state of Kansas had no power to confer authority upon the school board of the city of Ottawa to make the order complained of. The rule itself is a violation of the rights conferred by the fourteenth amendment, and is inoperative and void. (24 Iowa, 226; 40 id. 518; 41 id. 689.)

C. B. Mason, in reply, for plaintiffs in error:

The argument of counsel for defendant in error presents an alternative: First, that under §§ 151 and 158, pp. 846-7, Comp. Laws 1879, the action of the board of education in excluding from a particular school room the scholar on the ground that he is a person of African desent, is illegal; second, if it is authorized and lawful under those provisions, it is nevertheless illegal, because in violation of the fourteenth amendment to the federal constitution.

In reply, a brief commentary on the laws and authorities cited by counsel is submitted, beginning with reference to the federal amendment, and the authorities which he claims to be in point.

The powers granted by the people to the federal government are to be construed on the theory that all powers not expressly or incidentally conferred by the people are prohibited, and being the converse of the theory of construction applied to state constitutions. On the one theory, the prohibition is general; but on the other theory, the grant of power is general, and the prohibition is special. The thirteenth, fourteenth and fifteenth amendments, in most of their provisions, belong to that class of enumerated powers of the general government known as prohibitions to the states, and which the federal government has the power to enforce; but in the construction to be given of the supervisory control to be exercised by the United States, the vigilant federal judiciary expresses the conception which it entertains when called upon to construe these amendments, that it is the duty of the general government to abstain from claiming powers not expressly granted.

We all know that the adoption of these amendments had its foundation in the necessity of rectifying the political discriminations which existed, and which were inharmonious with the cardinal principle and theory of free government. And viewing the apparent scope of the first section of the fourteenth amendment, it is singular that any necessity existed for the adoption of the fifteenth amendment, as the unlearned can scarcely conceive a broader and more comprehensive statement of equal rights. But the jealousy of the people as against the possible encroachment of federal power, had given birth to the ninth and tenth amendments, and to such salutary rule of construction by the judiciary, that the adoption of the fifteenth amendment was vitally necessary to remedy the evil still then existing; and in this amendment, for the first time the term "color" appears in the federal constitution. Bearing in mind the prevalence of such rule of construction, the history and intention of congress and the legislature, and of the people in submitting and adopting these amendments, is it the lamentable fact claimed by counsel that under the fourteenth amendment, no school board has the right, under the circumstances of the agreed facts in this case, to make the regulation complained of? In the authority, from which counsel cites a paragraph only in his support, (16 Wall. 36,) the court, in the opinion by Mr. Justice Miller, says: "Was it the purpose of the fourteenth amendment, by the simple declaration that no state should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned from the states to the federal government? And where it is declared that congress shall have the power to enforce that article, was it intended to bring within the power of congress the entire domain of civil rights heretofore exclusively belonging to the states?" And this is answered as follows: . . . "We are convinced that no such results were intended by the congress which proposed these amendments, nor by the legislatures of the states which ratified them."

The whole opinion of Mr. Justice Miller is as able and philosophic as may ever be rendered concerning the fourteenth amendment; and it is evident that the power of the general government will never be extended by the judiciary to condemn any laws of a state so long as equal advantages and equal protection are available under the law, and not denied, whether on account of color or any other difference.

The paragraph referred to as cited by counsel from the opinion of Mr. Justice Miller, "We doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision," is made by the court with reference to the clause, "No state shall deny to any person the equal protection of the laws." But the court also, in regard to this clause, says: "In the light of the history of these amendments, and the pervading purpose of them which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the states where the newly-emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden." Now it cannot be truthfully said that any such laws exist in the state of Kansas, nor that any such injustice, or hardship, or inequality, or discrimination, appears in the agreed facts of this case, as is contemplated by the fourteenth amendment.

The decision of the circuit judge lately elevated to the supreme bench is in our opinion conclusive, and the only one directly in point. (3 Woods, 177.) Rendered subsequently to all the decisions cited by counsel, it is hardly to be presumed that the learned judge was not familiar with the decisions of the federal courts when deciding that educational privileges are matters exclusively within the domain of the state, and not the rights, privileges, immunities and protection intended to be enforced by the federal government by virtue of the fourteenth amendment.