Rice v. Gong Lum

• Decision Date: 11 May 1925
• Docket Number: 24773
• Citation: 139 Miss. 760,104 So. 105
• Court: Mississippi Supreme Court
• Parties: RICE et al. v. GONG LUM et al. [*]

104 So. 105

139 Miss. 760

RICE et al. v. GONG LUM et al. ^[*]

No. 24773

Supreme Court of Mississippi

May 11, 1925

APPEAL from circuit court of Bolivar county, First District, HON. W A. ALCORN, JR., Judge.

(In Banc.)

1. SCHOOLS AND SCHOOL DISTRICTS. Person of Mongolian race is not entitled to attend school for white persons; "colored races," "white race."

Under section 207 of the Constitution of 1890, providing that there shall be separate schools for the white and colored races the term "white race" as used therein is limited to the Caucasian race, and the term "colored races" is used in contradistinction to the white race, and embraces all other races.

2. SCHOOLS AND SCHOOL DISTRICTS. Purpose of Constitution providing for separation of races was to preserve purity and integrity of white race.

The dominant purpose of the Constitution in providing for separation of the races was to preserve the purity and integrity of the white race and prevent amalgamation, and to preserve, as far as possible, the social systems of race segregation.

3. SCHOOLS AND SCHOOL DISTRICTS. Each county is divided into school districts for each race separately.

Under the statutes of the state the whole territory of a county is divided into school districts for each race separately, the whole county being divided into school districts for the white race, and the whole county being divided separately into school districts for the colored races, and each child in the county lives in a district where a public school is maintained for the race entitled to attend the school, within convenient distance of each child.

4. SCHOOLS AND SCHOOL DISTRICTS. "Consolidated school" defined; consolidation of school district is discretionary with school authorities; either consolidated school or common school district may extend terms and conduct high school curriculum and levy taxes to support extended terms.

A consolidated school is simply a common school conducted as other common schools are, made up of the consolidation of two or more previous school districts consolidated into one. Such consolidation is discretionary with the school authorities. A consolidated school and the common schools are the same in effect, and either district may, under given conditions extend the terms and conduct a high school curriculum therein, and may levy taxes to support such extended terms there being no discrimination between the races therein in reference thereto.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Bolivar county, First District, HON. W. A. ALCORN, JR., Judge.

Suit by Gong Lum and another by next friend Chew How, for mandamus to be directed to G. P. Rice and others. From judgment for plaintiffs, defendants appeal. Reversed, and petition dismissed.

Judgment reversed and petition dismissed.

E. C. Sharp, Assistant Attorney-General, for appellant.

Gong Lum filed a petition in the circuit court of Bolivar county for a writ of mandamus to compel the state superintendent of education, the county superintendent of education and the trustees of the school in Bolivar county to admit Chinese children to the white schools of the county, to which a demurrer was interposed by the attorney-general and the case heard in vacation by agreement, the demurrer being overruled by the trial judge and this appeal prosecuted.

The issue presented by this case calls for a construction of section 207 of the Constitution of Mississippi, which is as follows: "Separate schools shall be maintained for children of the white and colored races."

And section 1 of article 14 of the Constitution of the United States which reads as follows: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

If children of Chinese birth are of the white race, the court was correct in overruling the demurrer in this case, otherwise it should have been sustained.

The action of the school authorities in denying Chinese children admission to the public schools organized and conducted for children of the white race was based upon an opinion rendered by the attorney-general of Mississippi on the 13th day of September, 1924, which opinion followed one rendered by the same office on the 13th day of February, 1920. Both of the said opinions cited the case of Moreau et al. v. Grandich et al., 114 Miss. 560, 75 So. 434.

In the Moreau case, supra, the children were of negro descent, and it may be contended that, therefore, the rule therein set forth is not applicable to children of Chinese descent. This however, is answered by the fact that the court in the Moreau case adopted the language used by the supreme court of the United States in many cases, in which that court defined "white" as applied to races.

And in almost, if not every instance, in which the supreme court of the United States has been called upon to pass upon the eligibility of aliens to become naturalized under these provisions, it is held that only members of the Caucasian race were eligible as free white persons.

The definition of "white" or the rule as to who were intended or included in the term "white race," was first announced so far as we are able to ascertain in 1878 in the case of Ah Yup, 5 Sawy. 155, F. Cas. 140, and has been constantly followed and adhered to by that court and practically all of the state courts since that time. The most recent decisions of the court on that subject are in the cases of Ozawa v. U.S. 260 U.S. 178, 67 L.Ed. 199, and Yamashita v. Hinkle, 260 U.S. 198, 67 L.Ed. 209.

In the Yamashita case, Chief Justice RAEVIS of the supreme court of Washington in 30 Wash. 234, discusses the divisions of the human race and adopts that of Blumenbach, which is that adopted by Webster in his Dictionary.

It has been at all times the policy of the lawmakers of Mississippi to preserve the white schools for members of the Caucasian race alone. Following the separation of the races authorized by the Constitution, by section 4562, Code of 1906, it is provided that county school boards may locate schools exclusively for Indians. Our lawmakers evidently had in mind the fact that Indians cannot be classed as of the Caucasian or white race and were desirous of prohibiting an intermingling of any race with the Caucasian or white children of our state. See 7 Cyc. 167.

In Plessy v. Ferguson, 163 U.S. 537, the constitutionality of the Louisiana statute, requiring separate coaches for the races was involved. See, also, Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 738; Cumming v. Board of Education, 175 U.S. 528, 44 U.S. (L. Ed.) 262.

While all admit that the benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, the education of the people in schools maintained by state taxation is a matter belonging to the respective states, and any interference on the part of Federal authority with the management of such schools cannot be justified except in a case of clear and unmistakable disregard of rights secured by the supreme law of the land.

Inasmuch as the right of the state to require separate schools for the white and colored races had been upheld in numerous cases, and there being no allegation in the original bill that adequate schools are not being maintained for children of the colored races, we come back to the question, and really the only question, involved in this case, to-wit: Are Chinese children of the white race and entitled as such to attend the schools of the white race. "'White persons,' as used in the Constitution and statutes, 'has a distinct signification, which ex vi termini excludes black, yellow, and all other colors.' It is used, 'in its generic sense, as including the Caucasian race, and necessarily excluding all others.'" Webster's International Dictionary, Words & Phrases, Vol. 8, 7446; People v. Hall, 4 Cal. 399; In Re Kanaka Nian, 21 P. 993, 6 Utah 259, 4 L. R. A. 726; 40 Cyc. 927.

However, we do not have to look to the cases of other states, or the classifications of other courts to determine the legislative classification of the Chinese or Mongolian race in Mississippi. The status or classification of this race has been declared and fixed by our own legislature. It has in unmistakable terms placed the Chinese or Mongolian race in the same category with the negro. This is conclusively shown by section 2551, Hemingway's Code, being section 3244, Code 1906.

The above section is identical with section 2859, Code 1892, which code was adopted two years after the adoption of our present Constitution, and no doubt many of the members of the legislature at the time of the enactment of this statute had been members of the Constitutional Contention, which by section 207 of the Constitution of Mississippi declared the policy of the state of Mississippi in regard to the separation of races in the schools.

It was argued in the lower court and doubtless will be in this court that at the time of the adoption of the Constitution of 1890 the framers of the Constitution only had in mind the white and negro races. We cannot accept this reasoning, for as is well known, the Constitutional Convention included among its members many of the most able lawyers that the state of Mississippi has ever produced and they were no doubt familiar with the classifications which had been put upon the races by the supreme court...