Opinion - Tinnon

The case of Strauder v. West Virginia (10 Otto, 303) is not a case parallel to that of the relator. The circumstances there make a palpable violation of the protection of the laws a denial of the equal protection of the laws; a refusal of the rights, privileges and immunities of a citizen, i.e., the right to a trial by a jury of his peers; a discrimination against the negroes as a class, in denying also the rights as jurors, as the rights of the defendant, and make one class of trial for the white man and another kind for the black man. That decision only declares that the law in West Virginia was not the same for the black as for the white, for it was in effect a denial of a trial by jury, such as the constitution and the laws intend.

Neither the defendant nor his race, under the facts in the Strauder case, had a possible or available chance of the equal protection of the laws. Were educational privileges embraced within the provisions of the amendment, there would in our opinion be a wide difference between that case and the one of the relator.

At first sight, the language of the case of Rld. Co. v. Brown, 17 Wall. 445, seems to be a sermon on the gospel of social equality, to the gratification of the most sanguine colored aspirant for Caucasian privileges; and that, with the Slaughter House Cases, and Bertonneau v. School Directors, 3 Woods, 177, the federal decisions have shown with admirable skill, how

"To veer and tack and steer a cause
Against the weather-gage of laws."

But after a careful perusal of the opinion and consideration of the facts of the case, we are at no loss to understand the duty of the court in construing a grant of power strictly against a corporation having special privileges. Such privileges were asked and accepted, coupled with a proviso that no person should be excluded from its cars on account of color, and the court without any reference to the, fourteenth amendment, but construing the particular enactment of congress in granting the charter of the powers of the railroad company, used the language cited by counsel declaring that discriminations on its cars on account of color must cease--not because of the fourteenth amendment, but because of the intention of the enactment, and by reason of the rule of construction in such cases.

The sum and the substance of that decision is: That if a railroad company accept a charter, it will be construed most strongly against it, and if it is provided that no person shall be excluded from the cars on account of color, then the same sleeping cars and appurtenances are alike the privileges under the charter to the black and white. If the courts, as in the case of Rld. Co. v. Brown, are to take into consideration the intention of the law-makers, we may safely conclude that neither congress, the legislature, nor the people, at the time of the adoption of the fourteenth amendment, had in view the education of blacks and whites in the same school room; and it may safely be denied that educational privileges were the questions then under consideration. Questions of association are different questions from the political rights and protection aimed at, and in which the government has the right to demand an equality. Such political rights, meant to be conferred by the fourteenth amendment, are the material, substantial equality before the law, to be enjoyed by all citizens regardless of discrimination on account of any differences; but not the remote, imaginary and speculative rights claimed by the relator in this case. He is not denied any rights whatever; his opportunities for an education are admitted to be equal with the best, and his wrongs are only that his taste is violated. It is a true, though an unpopular declaration, that courts will not interfere to regulate such fancies of any individual, so long as De gustibus non est disputandum remains the fact.

The opinion of the court was delivered by

VALENTINE, J.: This is an action of mandamus, brought by Leslie Tinnon, a colored boy of school age, by his next friend, Elijah Tinnon, to compel the board of education of the city of Ottawa, and William Wheeler, the principal of the public schools of said city, to admit the plaintiff to attend one of such public schools. A trial was had in the court below by the court without a jury, and judgment was rendered in favor of the plaintiff and against the defendants, and a peremptory writ of mandamus was ordered; to all of which the defendants below excepted, and now bring the case to this court for review.

In the court below, the pleadings were so framed and admissions were so made that the only question presented to the court below for decision was, whether the board of education of a city of the second class has the power to establish separate schools for white and colored children, and to exclude colored children from the schools established for white children for no other reason than that they are colored children. As before stated, the court below decided that the board of education has no such power. The statutes of this state having application to this question, reads as follows:

"SEC. 2. In each city governed by this act there shall be established and maintained a system of free common schools, which shall be kept open not less than three nor more than ten months in any one year, and shall be free to all children residing in such city between the ages of five and twenty-one years. But the board of education may, where school-room accommodations are insufficient, exclude for the time being children between the ages of five and seven years."

"SEC. 9. The board of education shall have power to elect their own officers, except the treasurer; to make their own rules and regulations, subject to the provisions of this article; to organize and maintain a system of graded schools; 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 schools and school property of the city."

These statutes were passed in 1876. (Laws of 1876, ch. 122, art. 11, §§ 2, 9; Comp. Laws of 1879, pp. 846, 847.)