48 Cal. 36, 3,532, Ward v. Flood

CourtUnited States State Supreme Court (California)
Writing for the CourtWALLACE, Judge
JudgeJUDGES: Wallace, C. J. McKinstry, J., concurring specially. Mr. Justice Rhodes did not express an opinion. McKINSTRY
Citation48 Cal. 36
PartiesMARY FRANCES WARD, by A. J. Ward, her Guardian, ad litem, v. NOAH F. FLOOD, Principal of the Broadway Grammar School, in the City and County of San Francisco
Docket Number3,532

Page 36

48 Cal. 36

MARY FRANCES WARD, by A. J. Ward, her Guardian, ad litem,

v.

NOAH F. FLOOD, Principal of the Broadway Grammar School, in the City and County of San Francisco

No. 3,532

Supreme Court of California

January, 1874

Page 37

[Syllabus Material]

Page 38

[Syllabus Material]

Page 39

[Syllabus Material]

Page 40

Application to the Supreme Court for writ of mandate.

COUNSEL

John W. Dwinelle, for the Plaintiff.

The Civil Rights Bill, passed April 9th, 1866, (14 U.S. Statutes at Large, 27,) declares all such emancipated persons born in the United States, to be citizens of the United States.

The Fourteenth Amendment of the Constitution of the United States, adopted July 13-28, 1868, (15 U.S. Statutes at Large, 709,) is in these terms:

Article XIV, Section 1.--All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the States wherein they reside. No State shall make or enforce any law which shall abridge the privileges and 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.

The School Law of California, passed April 4, 1870, (Laws 1869-70, p. 838,) contains the following provisions:

Section 53. Every school, unless otherwise provided by special law, shallbe open for the admission of all white children between five and twenty-one years of age residing in that school district, and the Board of Trustees or Board of Education shall have power to admit adults and children not residing in the district, whenever good reasons exist for such exceptions.

Sec. 56. The education of children of African descent, and Indian children, shall be provided for in separate schools. Upon the written application of at least ten such children to any Board of Trustees, or Board of Education, a separate school shall be established for the education of such children; and the education of a less number may be provided for by the Trustees, in separate schools, or in any other manner.

Sec. 57. The same laws, rules and regulations, which apply to schools for white children, shall apply to schools for colored.

The Board of Education of the city and county adopted the following regulation which existed at the time when the cause of action arose in this case:

" Sec. 117. Separate schools. Children of African or Indian descent shall not be admitted into schools for white children; but separate schools shall be provided for them in accordance withthe California School Law." (The People v. The Board of Education of Detroit, 18 Mich. 401.)

The statutes of Michigan provided that " all residents of any school district shall have an equal right to attend any school therein; provided that this shall not prevent the grading of schools according to the intellectual progress of the pupils, to be taught in separate places when expedient."

Held: That a mandamus would be awarded to compel the admission of a colored pupil into the public schools where white children were taught, although separate schools for colored children had been established.

Note, that the cause of action accrued in April, 1868, and before the Fourteenth Amendment was adopted, on July 21-28, 1868.

This case is therefore only a construction of the then existing laws of Michigan, and is in point in the case in hand, only as showing that " an equal right to attend any school in the district" is not secure by the establishment of colored schools.

State v. Duffy, 7 Nevada, 342; Williams v. School Directors, Wright, 578; Gray v. State, 4 Ohio, 353; Jeffries v. Ankeny, 11 Ohio, 376; Thacker v. Hawk, 11 Ohio, 371; Chalmers v. Stewart, 11 Ohio, 386, 387; Lane v. Baker, 12 Ohio, 237; Stewart v. Southard, 17 Ohio, 402.)

In Clark v. The Board of Directors, etc., 24 Iowa 267, it was held that under a clause in the Constitution of that State, ordaining that " the Board of Education shall provide for the education of all the youths of the State, through a system of common schools," the Board of School Directors had no discretionary power to require colored children to attend a separate school. Before the adoption of the Thirteenth and Fourteenth Amendments to the Constitution of the United States, this decision would not, probably, have been in point in a case arising under the Constitution of the State of California, which denied to colored children any political status whatsoever. But since those amendments have given the political status of citizens to such children, when either native born or naturalized, the decision in 24 Iowa ut supra, becomes an authoritative construction of the meaning of the phrase " common schools," in Article IX, sections two and three of the Constitution of California. " Common schools" does not mean " ordinary" schools. It means public, common to all, in a political sense; and the words common and public are used as equivalent terms in the constitutions and statutes of all the States. Under the decision in 24 Iowa therefore, no child who is a citizen of California can be excluded, by reason of color or race, from any of the common or public schools of the State.

This is a case which can hardly be argued, any further than its statement alone is an argument. It is admitted now, by the highest masters of thought, even among theologians, that the existence of God himself cannot be proved, nor the duty of children to love and cherish their parents, nor that of general benevolence. But we know that God exists, and that these duties are of imperative obligation. We know that persons of African descent have been degraded by an odious hatred of caste, and that the Constitution of the United States has provided that this social repugnance shall no longer be crystallized into a political disability. This was the object of the Fourteenth Amendment, and its terms are above being the subject of criticism. We know, too, that a State must always have laws equal to its obligations. This was always true as a proposition of municipal law. Theworld is still ringing with the echoes of its announcement as a proposition of the public law of nations, by the highest tribunal that ever existed in the world, which has just closed its session at Geneva.

Williams and Thornton, for the Defendant.

The Fourteenth Amendment, while it raises the negro to the status of citizenship, confers upon the citizen no new privileges or immunities. It forbids any State to abridge by legislation any of those privileges or immunities secured to any citizen by the second secton of the fourth article of the Federal Constitution. They are those great fundamental rights which belong to the citizens of every free and enlightened country, and are so defined in the decisions of all the Courts. (Cooley's Const. Lim. 15, note 3.)

The right of admission to our public schools is not one of those privileges and immunities. They were unknown, as they now exist, at the time of the adoption of the Federal Constitution; that instrument is silent upon the subject of education, and our public schools are wholly the creation of our own State Constitution and State laws.

The whole system is a beneficent State institution--a grand State charity--andsurely those who create the charity have the undoubted right to nominate the beneficiaries of it.

The Fourteenth Amendment provides that " Congress shall have power to enforce, by appropriate legislation, the provisions of this Article."

Congress has exercised this power, and given us a legislative construction of this article, in accordance with that for which we contend. (U. S. Statutes, Vol. 16, p. 144, Sec. 16; Id. Vol. 14, p. 27, Sec. 1.)

But we find a full answer to this proceeding in the fact that colored children are not excluded from the public schools, for separate schools are provided for them, conducted under the same rules and regulations as those for the white, and in which they enjoy equal, and in some respects superior educational advantages.

So far as they are concerned, no rule of equality is violated--for while they are excluded from the schools for the white, the white are excluded from the school provided for the negro. (Vide Act of April 4, 1870, Secs. 53-56; Swett's Report, p. 13.)

This Act of the Legislature is constitutional. The Constitution of California on this subject differs materially from most of our State Constitutions. Itmakes it the duty of the Legislature to " provide for a system of common schools," thus leaving that body to exercise its own discretion, and to provide such system as it deems wise and just.

The Act of April 4th, 1870, embodies that system; it is the expression of the sovereign will, and is wise, just and politic. (Roberts v. Boston, 5 Cush. 198, 206; The State ex rel., etc. v. Cincinnati, 19 O. 178, 197; Van Camp v. Board of Education, 9 O. State, 406, 414; Westchester & Phil. R. R. v. Miles, 55 Penn. 212; People, etc., v. Board of Education , 18 Mich. 400, 412; State of Nev. ex rel., etc. v. Duffy, 7 Nevada, 342; Clark v. Board of Directors, 24 Iowa 272.)

Independent of all such considerations, under the police power of the State, the Legislature would have the right, by way of classification, to provide separate schools for the white and black, confining each to its appointed sphere.

This power is most comprehensive. It is inherent in every state, and inalienable. It exerts itself upon persons and property, whenever the safety and welfare of society is endangered. It is exercised for the general comfort, health and prosperity...

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96 practice notes
  • 64 F.Supp. 544 (S.D.Cal. 1946), C. A. 4292, Mendez v. Westminister School Dist. of Orange County
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Court (Southern District of California)
    • February 18, 1946
    ...of the land. ' See, also, Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172; Wong Him v. Callahan, C.C., 119 F. 381; Ward v. Flood, 48 Cal. 36, 17 Am.Rep. 405; Piper et al. v. Big Pine School District, 193 Cal. 664, 226 P. Obviously, then, a violation by a State of a personal right o......
  • 246 Cal.App.4th 896, A134423, Campaign for Quality Education v. State
    • United States
    • California California Court of Appeals
    • April 20, 2016
    ...Teachers Assn. v. Hayes (1992) 5 Cal.App.4th 1513, 1522 [7 Cal.Rptr.2d 699] (Hayes).) “The early case of Ward v. Flood (1874) 48 Cal. 36, considered the provisions of the Constitution of 1849 relative to educational affairs which, in Page 907 all material respects, [are]......
  • Campaign for Quality Education v. State, 042016 CAAPP1, A134423
    • United States
    • California California Court of Appeals
    • April 20, 2016
    ...” (California Teachers Assn. v. Hayes (1992) 5 Cal.App.4th 1513, 1522 (Hayes).) “The early case of Ward v. Flood (1874) 48 Cal. 36 [(Ward)], considered the provisions of the Constitution of 1849 relative to educational affairs which, in all material respects, [......
  • 28 S.E. 896 (Ga. 1897), Board of Ed. v. Purse
    • United States
    • Georgia Supreme Court of Georgia
    • August 5, 1897
    ...56 Iowa 476, 9 N.W. 356; Parker v. School Dist., 5 Lea, 525; Cooper v. McJunkin, 4 Ind. 290; Hathaway v. Rice, 19 Vt. 102; Ward v. Flood, 48 Cal. 36; Huse v. Lowell, 10 Allen, 150; Kidder v. Chellis, 59 N.H. 473; Metcalf v. State, 21 Tex.App. 174, 17 S.W. 142; Thompson v. Beaver, 63 Ill. 35......
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90 cases
  • 28 S.E. 896 (Ga. 1897), Board of Ed. v. Purse
    • United States
    • Georgia Supreme Court of Georgia
    • August 5, 1897
    ...56 Iowa 476, 9 N.W. 356; Parker v. School Dist., 5 Lea, 525; Cooper v. McJunkin, 4 Ind. 290; Hathaway v. Rice, 19 Vt. 102; Ward v. Flood, 48 Cal. 36; Huse v. Lowell, 10 Allen, 150; Kidder v. Chellis, 59 N.H. 473; Metcalf v. State, 21 Tex.App. 174, 17 S.W. 142; Thompson v. Beaver, 63 Ill. 35......
  • 182 A. 590 (Md. 1936), 53, Pearson v. Murray
    • United States
    • Maryland Court of Appeals of Maryland
    • January 15, 1936
    ...Pine School Dist., 193 Cal. 664, 226 P. 926, 928; Board of Education v. Foster, 116 Ky. 484, 76 S.W. 354, 3 Ann. Cas. 692; Ward v. Flood, 48 Cal. 36, 17 Am.Rep. 405. The requirement of equal treatment would seem to be clearly enough one of equal treatment in respect to any one facility or o......
  • 505 P.2d 939 (Or.App. 1973), Neuhaus v. Federico
    • United States
    • Oregon Court of Appeals of Oregon
    • February 2, 1973
    ...to the objectives, it cannot be said to be capricious, arbitrary or unjustly discriminatory.' Notes: [1] Compare Ward v. Flood, 48 Cal. 36, 17 Am.Rep. 405 (1874), With State ex rel. Adams v. Burdge and others, 95 Wis. 390, 70 N.W. 347, 37 L.R.A. 157, 60 Am.St.Rep. 123 (1897): '* * * The adv......
  • 200 Cal. 1, S. F. 11654, Bank of Italy v. Johnson
    • United States
    • California United States State Supreme Court (California)
    • December 15, 1926
    ...and relying upon any and all legal reasons for denying the same. The leading case in this state on this subject is Ward v. Flood, 48 Cal. 36 [17 Am. Rep. 405]. In that case the mother of a negro Page 29 girl sought in a mandamus proceeding to compel the principal of the Broadway Grammar Sch......
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5 books & journal articles
  • Schooling at Risk
    • United States
    • Iowa Law Review Nbr. 103-3, March 2018
    • March 1, 2018
    ...parameters found only 17 articles, many of which are student notes. 22. See infra notes 55–82 and accompanying text. 23. Ward v. Flood, 48 Cal. 36, 40 (1874). 24. Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142, 89 Stat. 773 (codified as amended in scattered sections ......
  • State Courts and Constitutional Structure; 51 Imperfect Solutions: States and the Making of American Constitutional Law.
    • United States
    • Yale Law Journal Vol. 128 Nbr. 5, March 2019
    • March 1, 2019
    ...at 205. (224.) Id. at 209. (225.) Id. (226.) Id. at 209-10. (227.) Plessy v. Ferguson, 163 U.S. 537, 544 (1896). (228.) See Ward v. Flood, 48 Cal. 36, 52-56 (1874) (quoting Roberts, 59 Mass. (5 Cush.) at 205-10); Lehew v. Brummell, 15 S.W 765, 767 (Mo. 1891) (citing Roberts); State ex rel. ......
  • Brown v. Board of Education of Topeka, Kansas
    • United States
    • West's Encyclopedia of American Law Milestones in the Law
    • January 1, 2005
    ...the state supreme court upheld segregated schools despite the petitioner's claim that this practice violated the Amendment. Ward v. Flood, 48 Cal. 36 (1874). The legislature then revised the school laws and eliminated the provisions which had been held to require separate schools for Negro ......
  • Deconstructing the pipeline: evaluating school-to-prison pipeline equal protection cases through a structural racism framework.
    • United States
    • Fordham Urban Law Journal Vol. 36 Nbr. 5, November 2009
    • November 1, 2009
    ...ten students. This resulted in some black students being left without a school to attend. (260.) 163 U.S. 537 (1896). (261.) Ward v. Flood, 48 Cal. 36, 48-52 (1874); see also WOLLENBERG, supra note 259, at 9,21. (262.) In Korematsu v. United States, the United States Supreme Court held Pres......
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