Van Camp v. Board of Education of Logan.

(2 Curwen Rev. Stat. 1428), provided, for the first time in Ohio, for the education of colored children, as such, directing the levy of a tax for that purpose upon the property of colored persons, the organization of colored school districts and the appropriation of the tax so levied to the support of separate schools for colored children, if objection was made to their admission into white schools, but prohibited the application of any part of the taxes levied upon the property of the whites, to the support of such colored schools, unless the whites assented thereto. This law, which was very defective and inefficient, was repealed in less than a year after its passage, by the act of February 10, 1849 (2 Curwen Rev. Stat. 1465), which also provided for the organization of colored schools and was complete and effective in its details, but like the law it repealed, appropriated no other funds for the support of the colored schools, save those collected from the property of colored persons.

The law of 1849, continued in force until repealed by the law of March 14, 1853, which, conceived in a more liberal and patriotic spirit, not only provides for the education of colored children and imposes the duty or organizing separate schools for them, upon the board of education of the particular locality, but gives to the colored youth their full share, in proportion to numbers, of the common-school fund, and no longer restricts them to the miserable pittance collected from the colored tax-payers; thus carrying out what Chief Justice Hitchcock, in 19 Ohio, 193, had intimated as the true policy, "that the white and colored youth should be placed in separate schools, and the school fund should be divided between them in proportion to their numbers.”

This act of 1853, unlike some of the preceding legislation, looks to and makes provision for the education of all the children within the state (section 63);—children of all races and shades of color. But in so doing, divides them into two classes, "white" 410] and "colored," and imposes the duty of providing schools for both classes, though under different teachers, upon the same board of education. The law, then, is one of classification and not of exclusion. All the youth, within the prescribed ages, must fall within the one class or the other. All are to be instructed and to participate equally in the public fund, and the share of one class can never be diverted to the instruction of the other. It is true, that where the number of colored youth is too small to justify the organization or the continuance of a school for colored youth, such school

Van Camp v. Board of Education of Logan.

must be temporarily delayed or suspended; but this is no more than might occur with the other class under similar cicumstances. In determining what is to be understood by the terms "white" and "colored," as used in this act, we may look to the state of things existing at the time, the evils complained of, and the remedies sought to be applied. For nearly two generations, blacks and mulattoes had been a proscribed and degraded race in Ohio. They were debarred from the elective franchise and prohibited from immigration and settlement within our borders, except under severe restrictions. They were also excluded from our common schools and all means of public instruction-incapacitated from serving upon juries, and denied the privilege of testifying in cases where a white person was a party. It would be strange, indeed, if such a state of things had not increased, in the present generaation, the natural repugnance of the white race to communion and fellowship with them. Whether consistent with true philanthropy or not, it is nevertheless true, that in many portions, if not throughout the state, there was and still is an almost invincible repugnance to such communion and fellowship. It is also to be borne in mind, that a class had grown up among us, which, though partly black, had still a preponderance of white blood in their veins, and that the courts, influenced in some degree by the severe and somewhat penal character of the restrictions as to blacks and mulattoes, had held that such persons were not only en- [411 titled to vote at elections, and testify in our courts of justice, but were also admissible into the schools for white children. It is notorious that these decisions, especially the last, did not receive the hearty approval of the state at large. The prejudice of ages could not be dissipated by one or more judicial decisions, and the frequent suits brought to enforce such admission, evidence such feeling on the part of young and old.

Under this state of things the act of 1853 was enacted. Three objects seem to have been especially in view. To divide all the youth of the state, for educational purposes, in two classes, to provide more effectually for the education of both classes, and to require both classes to be separately instructed. To which of these classes do the children of the plaintiff in error belong—“white” or "colored?" They are not in the ordinary, if they are in a legal sense, white. The demurrer admits that they are, in fact, if not in law, colored children. Our standard philologist, Webster,

Van Camp v. Board of Education of Logan.

defines "colored people" to be "black people, Africans, or their descendants, mixed or unmixed." Such is also the common understanding of the term. A person who has any perceptible admixture of African blood, is generally called a colored person. In affixing the epithet "colored," we do not ordinarily stop to estimate the precise shade, whether light or dark; though where precision is desired, they are sometimes called "light-colored," or "dark-colored," as the case may be. If we look at the evils the law was intended to remedy, we shall arrive at the same result. One of the evils undoubtedly was the repugnance felt by many of the white youths and their parents to mingling, socially and on equal terms, with those who had any perceptible admixture of African blood. This feeling or prejudice, if it be one, had been fostered by long years of hostile legislation and social exclusion. The general assembly, legislating for the people as they were, rather than as, perhaps, they ought to have been, while providing for the education 412] and consequent ultimate *clevation of a long-degraded class, yielded for the time to a deep-seated prejudice, which could not be eradicated suddenly, if at all. Such an arrangement, in the present state of public feeling, is far better for both parties-for the colored youth as well as those entirely white. If those a shade more white than black were to be forced upon the white youth against their consent, the whole policy of the law would be defeated. The prejudice and antagonism of the whites would be aroused, bickerings and contentions become the order of the day, and the moral and mental improvement of both classes retarded. It would seem then, from this examination of the law of 1853, and the circumstances under which it was passed, that the words white" and "colored," as used in that act, were both used in their ordinary and common acceptation, and that any other construction would do violence to the legislative intent, and perpetuate the very evils that act was intended to remedy. Such was also the construction which the act, upon its passage, received in many portions, if not throughout the state. The colored population, whether more or less than mulatto, affiliated with the blacks. Schools were organ ized, and a wholesome rivalry inaugurated between the two classes.

But it is claimed that the word "white," before it was used in the act of 1853, had, by a series of decisions of this court, been held to include all persons, though in part of African descent, who

Van Camp v. Board of Education of Logan.

are more than half white, and that the legislature must be presumed to have used it in that enlarged sense. The decisions referred to are Polly Gray v. The State, 4 Ohio, 353; Williams v. School Directors, etc., Wright, 579; Lane v. Baker et al., 12 Ohio, 237; Jeffries v. Ankeny et al., 11 Ohio, 372; and Thacker v. Hawk, Ib. 376.

The case of Polly Gray arose under the law in force at the time, prohibiting blacks and mulattoes from testifying in cases where a white person was a party. The cases in Wright, and in 12 Ohio, were cases arising under the school laws in force prior to [413 1843, and the two cases in 11 Ohio are cases where persons of more than half white blood had been debarred from voting at elections. The opinions are very brief, and in none, save the first two, do the court assign any reason for the opinion, except the authority of the decision in the Polly Gray case. The statutes and the constitutional provisions as to voters, under which the questions arose, are disabling and exclusive in character, and it is apparent, from what is said, that the tendency and effect of the provisions greatly influenced the decisions. In the case of Polly Gray the court remark, that the statute defines only three classes of persons, whites and blacks and mulattoes, and say that they are not willing to make a third class, nor define the degree of darkness that should exclude. And in the Williams case they speak of the "shabby meanness of taxing them for the support of common schools, and excluding their children from the benefits; and also say that color is very unreliable, and that it is blood and not color that incapacitates. It is obvious that if the statutes in those cases had excluded colored persons or children, as well as blacks and mulattoes, a different result would have been attained. As between whites and blacks and mulattoes, they might well limit the disability to the mulatto; but if colored had been used, then all less than white would have been excluded. There is no margin between white and colored; and all that are not white are colored; and in such case, the court would have been required to do what they, in the Williams case, refused to consider color as well as blood. Not complexion alone, but complexion and blood combined. The test of exclusion would have been-is the applicant of mixed blood, and is that admixture apparent? If the word "white," in the law of 1853, was used in the same connection as in the laws under which those decisions were made, it would be fair to presume that the legislature intended it.

Van Camp v. Board of Education of Logan.

to bear the same relative signification; but where they drop the 414] words "blacks and mulattoes," and *place, in opposition to white, a term which embraces all less than pure white, no such presumption can fairly or properly arise. That the legislature intended that the word "colored," in the law of 1853, should bear its ordinary and popular signification, is also apparent from the fact that in section 5, of the law of 1849, they qualified and restricted its signification for the purposes of that act; but in the law of 1853, which repealed the law of 1849, and relates to colored youth, they did not re-enact the restriction, though the necessity still existed, if the limitation was intended to apply thereafter.

These decisions in regard to the right of persons more than half white to testify, and to attend the common schools, have had their day, and accomplished their purpose, and we do not seek to disturb them. The statutes to which they apply, have been repealed, and the construction we place upon the act of 1853 does not conflict with them. It is a law of classification, and not of exclusion, intended and designed to place in one school all the white youth, and in the other, all who have any visible taint of African blood. That the legislature have the power thus to classify the scholars, even when all are undeniably white, no one will question. It might, perhaps, have been better if some further and more definite provision had been made for the education of colored youth, in districts in which the number is so very limited, as it appears to be in the village of Logan. That, however, is a matter for the consideration of the legislature, and not for the judiciary.

We do not undertake to decide whether the decisions as to the right to vote under the old constitution, above referred to, apply to similar cases arising under the new. It will be time enough to determine their applicability to the new constitution, when the question is before us. There is no necessary connection between the two questions; nor is there such an incongruity in excluding 415] light mulattoes from the white schools, and permitting *them to participate in elections, as the counsel for the plaintiff seem to suppose. If the law excluded them altogether from the means of education, it might be somewhat incongruous to permit them to participate in the elections; but when their education is enjoined and the means provided, though in separate schools, no such incongruity can arise.

A majority of the court then held that colored youth of the