Page:Federal Reporter, 1st Series, Volume 10.djvu/749

DNITED STATES i;. BUNTIN. iit �in fact, been established, it was held that colored pupils must be admitted to the schools provided for whites. Under a similar state of facts, in 8tate y. Duffy, 7 Nev. 342, it was decided that no right secured by the fourteenth amendment had been violated, but that such exclusion was contrary to the state constitution. That such a discrimination is not also covered by the last clause of the fourteenth amendment, guarantying to all persons the equal protection of the laws, may well be questioned ; and it is submitted that the best-coDsidered authorities recognize such protection. Van Camp v. Board of Edibcation, 9 OMo St. 406, (1859,) which arose before the adoption of the four- teenth amendment, relief was denied, although no separate school had been established; but as to this see State v, McCann, 21 Ohio St. 208. And see, also, Roberts v. Boston, 5 Cush. 198, (1849,) where it was held that under the constitution and laws of Massachusetts different schools could be provided for the two races. �Opposed to this vlew stands the dictum of a majority of the supreme court of Kansas in the case of Board of Education v. Tinnon, 13 Cent. Law J. 272, decided last September. The court contends that if the separation of scholars on the color Une can be sustained, pupils of different nationalities can be divided, — those of Irish descent f rom those of German descent, etc. The ques- tions decided in that case are that no power bas been conferred upon boards of education of cities of the second class to exclude colored children from any of the schools of the city, and that without such power they have no authority to do so. The opinion of Valentine, J., in his able argument against a caste classifleation, is an excellent example of the advanced and progressive spirit of our western states. Under the constitution and laws of lowa and Michigan it has been held that boards of education have no right to deny scholars admission to any school on the ground of color. Clark v. Board ofEdtication, 24 lowa, 266, (1868;) People v. Detroit, 18 Mich. 400, (1869.) �Mandamus is the proper remedy to enforce admission to the school. Board V. iPMmow, (Sup. et. Kan. 1881,) 13 Cent. Law J. 272; Clarh v. Board, 24 lowa, 266; People v. Detroit, 18 Mich. 400; State v.Duffy, 7 :N'ev. 342; Ward V. Flood, 48 Cal. 36; Corry v. Carter, 48 Ind. 327; High, Ex. Leg. Kem. § 332. �2. State Action. It will be observed that the inhibitions of section 1 of the fourteenth amendment are all directed solely against state action. In the language of Justice Strong its provisions have reference to " state action exclusively, and not to any action of private individuals." Virginia v. Rives, 100 U. S. 313, 318 ; Ex parte Virginia, Id. 339 ; Strander v. West Virginia, Id. 303; Nealw.Delaware, 103 U. S. 370; Texas y. ©ames, 2 Woods, 342 ; Miller v. May or, 13 Blatchf. 469; Illinois v. C. & A. R. Co. 6 Biss. 107; U. 8. v. Cruik- shank, 92 U. S. 542; State v. Dubuelet, 5 Eep. 201: Re Wells, 17 Alb. L. J. 111. The prohibitions of the amendment upon the state, extend to all the agencies and instrumentalities employed in the administration of its govern- ment, whether superior or subordinate, legislative, executive, or judicial. Ex parte Virginia, Virginia v. Rives, Neal v. Delaware, supra; Ah Kow v. Nunan, 5 Sawy. 552; 18 Am. Law Eeg. (N. S.) 676; Re Farrott, 1 Fed. EEp, 481. �v.lO.no.T — 47 ��� �