running north and south, and Main street, extending east and west through the city. For a long time the defendant has designated each of these divisions as separate school districts for attendance of school children. The city is also divided into four wards in conformity with these four divisions, each ward containing a schoolhouse. The plaintiff's four children are from 6 to 16 years of age, respectively, and prior to the 28th day of September, 1908, had attended the Lincoln School, situated in the first ward, being the northeast district of the city where the plaintiff resided. On that date the defendant made an order that the plaintiff's children should attend school in the second or southwest ward, requiring them to travel a mile and a half to the schoolhouse in that ward, which was known and designated as the "colored school" or school for colored children, which all children of African descent, commonly called “colored," were required to attend. The plaintiff demanded that his children should be allowed to attend the Lincoln School, as they had theretofore done, which demand was refused, and thereupon this action was commenced.

The Missouri, Kansas and Texas Railway Company has its machine shops, foundries, and roundhouse in the city and maintains switch yards, side tracks, and other tracks adjacent to its main line, and seven of its divisions have their termini in the city, where its trains are made up and are constantly passing over these tracks, and its Osage division extends from a point on its main line in a southwesterly direction. The St. Louis and San Francisco Railroad operates a railroad from Pittsburg to Cherryvale through the city, and also has side tracks and switch yards within the city. The school for colored children is located on a piece of ground bounded on the east by the tracks of the main line of the Missouri, Kansas and Texas Railway Company, on the west by the tracks of the Osage division of that railway, and on the north by the tracks of the St. Louis and San Francisco Railroad. In order to attend the school as now required by the board of education, the plaintiff's children must necessarily travel over 13 tracks of the main line of the Missouri, Kansas and Texas Railway Company, over which more than one hundred trains pass daily, and across the three tracks of the St. Louis and San Francisco Railroad, over which eight trains pass daily, and the passage of such trains and the switching of cars incident to the operation of these railroads obstruct the crossings over which the children must travel, so that their lives are imperiled, and they are often so delayed as to make it impossible to determine when they should leave home in order to arrive at the schoolhouse at the proper time. The school building is in such proximity to these tracks that the noise and confusion from the ringing of bells and blowing of whistles and the passage of trains is so great as to interfere with studies in the school. Because of the perils, noises, and confusion incident to this situation, the long distance that the children are compelled to travel, and unavoidable delays at the street crossings where they are compelled to stand in all kinds of weather, the children of the plaintiff are practically excluded from attending the public schools of the city without endangering life and limb. The schoolhouse was located after the various railroad tracks were built.

The alternative writ contains the following statement referring to the location of the school for colored children: "So that said building is bounded on the west by the main line of the Osage division and seven contiguous side tracks; that said building is bounded on the east by the main line of the said Missouri, Kansas and Texas Railway Company and 12 side tracks lying contiguous thereto, and is bounded on the north by the main line of said St. Louis and San Francisco Railroad Company and two side tracks lying contiguous thereto; that the Missouri, Kansas and Texas Railway Company operates at all hours of the day its engines, cars, and trains of cars over and upon said side tracks and main lines of tracks as above designated."

The defendant moved to quash the alternative writ, and the present hearing is upon this motion. This statement is based upon the recitals of the writ.

C. S. Denison, J. M. Nation, and W. I. Jamison, for plantiff. J. G. Slonecker, for defendant.

BENSON, J. (after stating the facts as above): The statute relating to schools in cities of the first class provides that: "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." (Gen. St. 1901, sec. 6290.)

The plantiff states that the question presented is whether the defendant by locating and constructing the school building for colored children in the dangerous place

described in the alternative writ is maintaining there a lawful school within the meaning of the law, or whether its construction in such perilous location is such an abuse of discretion as will sustain this action. He concedes that the board has the right under the statute to establish separate schools for white and colored children, provided they are given equal educational facilities. It is also conceded that this court can not control the just discretion given to the board to locate and build schoolhouses and maintain schools as provided by law. No malicious motives are charged, and no fraud is implied unless it may be inferred from the location of the school in a place so manifestly perilous as to deprive colored children of their right to attend school. Upon the motion to quash, the facts stated in the alternative writ must be taken as true, and the single question is thus presented whether the location of the school building is such that as a practical matter the plantiff's children can not attend school there. It is not a matter of taste or convenience (Reynolds v. Board of Education, 66 Kans., 672; 72 Pac., 274) or freedom from necessary danger; but the question is whether the perils that must be encountered are so obvious and so great that, in the exercise of reasonable prudence, their parents should not permit them to incur the hazard necessarily and unavoidably involved in attending the school. The schoolhouse was located after the tracks referred to had been laid, and, it is fair to suppose, were being used. The extent of the area included in the school grounds thus surrounded by these tracks, or the number of pupils attending the school, does not appear. It may be that a sufficient school population lives within such boundaries and in places reasonably accessible to make the erection of a schoolhouse there proper for their accommodation, and this may be, and it probably should be presumed is, the reason why this particular site was chosen; but it does not follow that children living in other parts of the city who would be compelled to cross the numerous tracks which the plantiff's children must cross to reach the school should be compelled to do so or lose all educational privileges. The plantiff is called upon to choose between a violation of the law and the risk of fine and imprisonment by refusing to send his children to school, as provided in the act compelling such attendance (chap. 423, p. 650, Laws, 1903) and the peril to their lives in crossing twice a day 16 railroad tracks upon which cars are constantly being switched, and trains made up and operated, with the incidental sounds of whistles and bells and all the noise and excitement incident to such a situation. It would seem that ordinary prudence, as well as just parental anxiety, would impel the father and mother to refrain from exposing their children to such hazards.

That boards of education, and not the court, must locate schools, and that the boards must be untrammeled by judicial interference in the exercise of the discretion wisely committed to them by the law, is a principle to which we give full and hearty approval; but the situation here, according to the recitals of this writ, is so beset with impending dangers that we can not say that the attendance of these children at this school should be compelled. We are constrained to say that the order of the board requiring them to attend this school, and no other, was, upon the facts stated in this writ, an "abuse of discretion." As that term is ordinarily used, it implies not merely an error in judgment, but perversity of will, passion, or moral delinquency (And. Law Dict.), but the term is applied here to characterize the denial of the rights of citizens clearly given by the Constitution and the laws, which a just discretion will not permit. "It is really a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." (Murray v. Buell and Others, 74 Wis., 14, 19; 41 N. W., 1010.) Having power to maintain separate schools in cities of the first class, the duty rests upon boards of education therein to give equal educational facilities to both white and colored children in such schools. This requirement must have a practical interpretation, so that it may be reasonably applied to varying circumstances. Its scope and purposes are stated in Reynolds v. Board of Education, supra, and need not be repeated here. But, where the location of a school is such as to substantially deprive a part of the children of the district of any educational facilities, i is manifest that this equality is not maintained, and the refusal to furnish such privileges, where it is practicable to do so, is an abuse of discretion for which the courts will afford a remedy. Circumstances may exist where the absence of such privileges is practically unavoidable. It is possible that a family or several families may be located so that no school is accessible, but the facts here stated do not present such an emergency. If it exists, or if for reasons not disclosed in the alternative writ it is practicable for these children to attend the school provided by the board, such facts with any other matter of defense may be pleaded. In deciding this motion we only hold that upon the facts stated the plantiff is entitled to relief by mandamusnot necessarily, however, to admit his children to Lincoln School, as requested, but to some school where they will have the privileges given to them by the law. The motion to quash the alternative writ is overruled.

II. Kentucky.

[Prowse et al. v. Board of Education for Christian County (court of appeals of Kentucky, June 18, 1909), 120 S. W., 307.]

1. STATUTES-REPEAL-GENERAL REPEAL OF INCONSISTENT ACTS.

Act March 24, 1908 (Acts 1908, p. 133, chap. 56; Ky. St., 1909, sec. 4426a), relating to public schools, and providing that all laws, and parts of laws, in conflict therewith were thereby repealed, did not constitute the whole school law, but only repealed so much of the old law as was in conflict with the

new.

2. SCHOOLS AND SCHOOL DISTRICTS-SCHOOL SYSTEM-LEGISLATIVE DETERMINA

TION.

Under constitution, section 183, requiring the general assembly to provide, by appropriate legislation, an efficient system of schools throughout the State, it is for the general assembly to determine what system will be most efficient.

3. SCHOOLS AND SCHOOL DISTRICTS-STATUTES.

Act March 24, 1908 (Acts 1908, p. 133, chap. 56; Ky. St., 1909, sec. 4426a), regulating public schools, was intended mainly to substitute a county board, having control of all the schools in the county, for the district boards of trustees previously existing; the act being intended to apply only to territory lying outside of graded school districts.

4. SCHOOLS AND SCHOOL DISTRICTS-CONSTITUTIONAL PROVISIONS-WHITE AND COLORED CHILDREN.

While the constitution requires the general assembly to maintain separate schools for white and colored children, it does not require a separate system of education for both.

5. SCHOOLS AND SCHOOL DISTRICTS-SEPARATE COLORED SCHOOLS-STATUTES.

Act March 24, 1908 (Acts 1908, p. 133, chap. 56; Ky. St., 1909, sec. 4426a), regulating public schools, did not affect the provisions of the old law requiring separate schools for white and colored children, and forbidding white children to attend colored schools, or vice versa.

6. SCHOOLS AND SCHOOL DISTRICTS-ESTABLISHMENT-COUNTY

BOARD.

Act March 24, 1908 (Acts 1908, p. 133, chap. 56; Ky. St., 1909, sec. 4426a), regulating schools and school districts, vests the power to establish school districts for white and colored children in the sound discretion of the county boards.

7. SCHOOLS AND SCHOOL DISTRICTS-HIGH SCHOOLS-WHITE AND COLORED CHIL

DREN.

Act March 24, 1908 (Acts 1908, p. 133, chap. 56; Ky. St., 1909, sec. 4426a), for the governing and regulation of the common schools of the State, and providing that within two years after its passage there should be established by the county board of education of each county one or more county high schools, provided there was not already existing in the county a high school, which in that event might be considered as meeting the purposes of the act, was not unconstitutional for failure to require a separate high school for whites and blacks, and that, if a high school was established for whites, there would be a discrimination against the blacks, since the act did not contemplate any such discrimination, but required an efficient system of separate schools for both races.

8. SCHOOLS AND SCHOOL DISTRICTS-STATUTES-SCHOOL FUNDS.

Act March 24, 1908 (Acts, 1908, p. 133, chap. 56; Ky. St., 1909, sec. 4426a), regulating public schools, is not unconstitutional in that it requires the fiscal court to make a levy sufficient to raise the sum found necessary by the board of education, since, in obeying the constitutional mandate to provide an efficient school system, the legislature must necessarily have the discretion of choosing its own agencies, and conferring on them the powers deemed by it essential to accomplish the required end.

Appeal from circuit court, Christian County.

Suit by the board of education for Christian County against Charles O. Prowse and others composing the fiscal court of that county, to obtain a writ of mandamus compelling defendants to make a levy for school purposes for the year beginning July 1, 1909. The court granted the writ as prayed, and defendants appeal. Judgment affirmed.

HOBSON, J.: Under an act entitled "An act for the government and regulation of the common schools of this State," approved March 24, 1908 (see Acts, 1908, p. 133, chap. 56; Ky. St., sec. 4426a), the board of education of Christian County, by written statement, asked the fiscal court of that county to make a levy on all property subject to taxation under the act, sufficient to raise the sum of $10,000, exclusive of the cost of collection, for school purposes for the school year beginning July 1, 1909. The fiscal court, being advised by the county attorney that the act was unconstitutional, refused to make the levy, and thereupon the board of education brought this suit in the Christian circuit court to obtain a writ of mandamus against the members of the fiscal court compelling them to make the levy. The defendants entered their appearance, and filed a demurrer to the petition. The court overruled the demurrer. The defend

ants declined to plead further, and the court granted the writ as prayed. The defendants appeal.

While the act makes radical change in our present school laws, it was manifestly not intended to be the whole law on the subject. The repealing clause is in these words: "All laws and parts of laws in conflict with this act are hereby repealed." Under this provision only so much of the old law as is in conflict with the new law is repealed. There are many subjects embraced in the old law which are not touched by the new; and it is manifest from the act that it was only intended to change the existing law in the particulars to which it relates. Section 183 of the constitution requires the general assembly to provide by appropriate legislation an efficient system of common schools throughout the State. What system will be most efficient is for the judgment of the general assembly. The legislature was of opinion that the old system was not as efficient as it should be, and that some change was necessary. It also evidently concluded that the proposed change would make the schools more efficient. In a matter like this, resting within the discretion of the general assembly, the court will not substitute its judgment for the judgment of the assembly, and it will not interfere with the action of the legislature, unless a palpable effort to evade the mandate of the constitution should appear. The common school system heretofore has consisted of a school in each district controlled by three trustees elected in that district. The main purpose of the act in question is to substitute a county board, having control of all the schools in the county, for the district boards of trustees heretofore existing. Graded schools are excepted out of the operation of the act. The act only applies to the territory lying outside of any graded school district. The white children and the colored children within any city or graded school district remain under the old law, and are in nowise affected by this act, as it only applies to that part of the county outside of these districts. No injustice is therefore done either the white or colored children in graded school districts by the act; for these districts are governed by the old law, as though this act had not been passed. In providing for a school board to have charge of all the schools in the county outside of the graded school districts, whether white or colored, the legislature did not introduce a new idea into our laws. We have the same system now in the cities of the Commonwealth, and the experience of the working of these boards in the cities no doubt prompted the legislature to extend the same system to the country districts. While the constitution requires the general assembly to maintain separate schools for white and colored children, it does not require a separate system of education for both. We have always had one state superintendent, who has charge of all the schools of the State; one state board of education, whose jurisdiction extends alike over white and colored people; one county superintendent, who has charge of all the schools in the county. To provide for a county board of education is in line with the laws that have always been in force. If the law does not work well in its present shape, the general assembly may remedy the evil, but this is a matter addressed to its discretion. The act is not unconstitutional because the legislature provided for only one county board of education. All of the provisions of the old law requiring separate schools for white and colored children, and forbidding that white children shall attend colored schools, or that colored children shall attend white schools, are left in force by the act. In fact, section 17 of the act recognizes that there must be separate districts for white and colored children. It is insisted that under section 2 of the act a school district may not contain less than 40 white children nor more than 100, and that as the districts are to be established on this basis, great injustice may be done the colored children. To prevent this, section 17 was inserted in the act, giving the county board power to consolidate any two or more districts with reference to the needs of either white or colored children. If there are not enough colored children in any district, it may be consolidated with some other colored district, so that injustice shall not be done. The question of laying off the counties into districts so as to do no injustice to either race is not without difficulty, as there are in some of the counties of the State a large number of colored people, and in a large part of the State few or no colored people. And so the legislature left the matter of the school districts to be worked out by the county boards in each county according to their sound discretion, upon the idea that these boards being upon the ground could solve the question better than the legislature.

The act provides that within two years after its passage there shall be established, by the county board of education of each county, one or more county high schools, provided there is not already existing in the county a high school, and that, in this event, the high school may be considered as meeting the purposes of the act, without the establishment by the board of a high school. It is insisted that the act is void because it does not require a separate high school for whites and blacks, and that, if a high school is established for whites, there will be a discrimination against the blacks. But it will be observed that the act requires the board to establish one or more high schools. The act also provides that the money derived from the taxes shall be spent

by the board according to its best judgment to promote the cause of education in the county. When the board of education shall discriminate against either race, then the race discriminated against may raise that question. The act does not contemplate that there shall be any discrimination. The act is passed under the provision of the constitution requiring the legislature to provide an efficient system of common schools, and to maintain separate schools for white and colored children. The duty imposed by the constitution upon the legislature is the same as to both white and colored children, both as to separate schools and as to the efficiency of the schools. The county board hold office under the constitution, and in discharging their duties they should administer the funds as provided by the constitution, according to their best judgment. There is nothing in the act authorizing any discrimination.

The act is not unconstitutional in that it requires the fiscal court to make a levy sufficient to raise the sum found necessary by the board of education. In obeying the constitutional mandate to provide an efficient system of common schools the legislature must necessarily have the discretion of choosing its own agencies, and conferring upon them the powers deemed by it necessary to accomplish the ends aimed at. The whole subject of common school education is confided to the judgment of the general assembly by the constitution. It may create such agencies as it deems proper to carry out the provisions of the constitution. The general assembly comes fresh from the people. After a short session of sixty days it returns to the people, and if any measures conceived by it to provide an efficient system of common schools throughout the State shall not prove satisfactory to the people, they have ample remedy in their own hands to correct the evil. While Kentucky has spent large sums for education, the fact remains that our percentage of illiteracy is far above the average in the States about us; and it must be conceded by all that there was urgent need of some action by the general assembly to provide a more efficient system of common schools than we have had. On the whole case, we find nothing in the act that is unconstitutional.

Judgment affirmed.

III. Mississippi.

[McFarland, Tax Collector, et. al. v. Goins (supreme court of Mississippi, Nov. 2, 1909), 50 So., 493.] CONSTITUTIONAL LAW-CLASS LEGISLATION.

Laws, 1908, page 92, chapter 102, authorizing a county to establish one agricultural high school for instruction of its white youth, and to support it by a tax on all taxable property therein, contravenes Constitution United States, amendment 14, section 1; its object or necessary effect being to abridge the privileges or immunities of a certain class of citizens, or deny them the equal protection of the laws.

Appeal from chancery court, Jasper County; Sam Whitman, jr., chancellor. Suit by Robert Goins against W. J. McFarland, tax collector, and another. Judgment for plaintiff. Defendant's appeal affirmed and remanded.

The appellee filed a bill in the chancery court to enjoin the appellants, who were the tax collector and treasurer, respectively, of Jasper County, from collecting a special tax levied to support and maintain an agricultural high school in said county, established under chapter 102 of the Laws of 1908, on the ground that the collection of such a tax and its application for such a purpose would be in violation of the Constitution of the United States, and that said act was unconstitutional. The defendants demurred, the court overruled the demurrer, and this appeal is prosecuted.

MAYES, J. In 1908 the legislature passed an act, entitled "An act to provide for the establishment of a county agricultural high school," etc. This act is chapter 102, page 92, Laws, 1908, and by section 1 it is provided "that it shall be lawful for the county school board of any county in the State to establish one agricultural high school in the county for the purpose of instructing the white youth of the county in high school branches, theoretical and practical agriculture, and in such other branches as the board hereinafter provided for may make a part of its curriculum." By section 2 of this act it is further provided that the board of supervisors of any county, where an agricultural high school has been established by the county school board, shall have the power, if necessary, to levy a tax on the taxable property at the time the annual tax levy is made for the support and maintenance of the said school, etc.

*

*

Section 1 of article 14 of the amendments to the Constitution of the United States makes "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, citizens of the United States and of the State wherein they reside," and further provides that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, * nor deny to any person within its jurisdiction the equal protection of the laws." When the act in question is read in the light of the fourteenth amendment to the Constitution of the United States, its violation of same is too plain for argument. By section 1 of the act of 1908 provision is made for the establishment of an agricultural high school for