Davenport v. Cloverport

• Decision Date: 03 February 1896
• Citation: 72 F. 689
• Parties: DAVENPORT et al. v. CLOVERPORT et al.
• Court: U.S. District Court — District of Kentucky

72 F. 689

DAVENPORT et al. v. CLOVERPORT et al.

United States District Court, D. Kentucky.

February 3, 1896

George W. Jolly, for complainants.

David R. Murray and D. W. Fairleigh, for defendants.

BARR District Judge.

This suit was brought by the complainants, who are of African descent, and citizens of the United States, and who bring the suit by their next friends, they themselves being colored children of school age, under the laws of the state of Kentucky. The bill sets out that by an act of the legislature adopted February 23, 1876, there was a consolidation of two school districts, which embrace the town of Cloverport, and created the board of trustees of the Cloverport High School to be elected by the white qualified voters of said district and that there was authorized, upon the request of said trustees, a levy upon the property, real and personal, of the white persons in said school district, not exceeding 50 cents on each $100 value of property, and a tax per capita, not exceeding $2 on each white male 21 years of age. The said tax was not to be levied unless, at an election held for that purpose, a majority of the white voters authorized the levy of said tax. By this law, the property of the colored people and the poll tax of colored voters were not subject to taxation for said purpose. Said board was also authorized to receive from the school commissioner of Breckenridge county the proportion of the school fund due said district. It is alleged in the bill that, under said law, a board of trustees had been elected and that the defendant Skillman is the treasurer of said board, and that for a series of years, including 1893 and 1894, a tax has been levied and collected upon the property, and a poll tax, of the white persons in said school district. By the tenth section of the law of 1876, it is provided 'that the control and management of the public schools of Cloverport, and the property and funds belonging thereto, and which may accrue in any way to them, or for their establishment, maintenance and management under this act, or otherwise, shall be vested in said board of trustees and their successors in office'; and, by the eleventh section, 'all white persons of both sexes between 6 and 20 years of age, living within the district constituted by this act, shall have equal rights of admission to this school, free from all charge of admission, or tuition, whatever, and the benefit of instruction in any branch or department whatever without charge'; and it is expressly declared that only white children shall be admitted or taught in said school. It is provided that the special tax authorized by said act shall be levied for the sole purpose of providing suitable buildings, furniture, teachers, and other costs and expenses of maintaining said school, as well as the expenses of having said taxes collection and disbursed, and paying the legitimate expenses of the board and its employes, but that no part of said fund is to be appropriated to provide buildings, furniture, teachers, etc., for colored children of the school age in said district.

The bill sets out that a considerable amount of taxes has been collected by said board, and received by said Skillman, treasurer, from taxes levied under such act, in the years 1893 and 1894, and that said complainants and all other colored children have been excluded from the benefit of any tax thus collected. It is also alleged in the bill that there is received annually, from said taxes, under the enactment of 1876, a sum exceeding $4,000; and that it should be divided and apportioned equally among and for the benefit of all the children residing in said district and said Cloverport who are of school age,-- that is, between 6 and 20 years of age; and that there are in said district 672 children, white and colored, of school age; and that there should be apportioned and set apart for the benefit of each colored child the same as white, to wit, 1/672 part of said fund received by said trustees and treasurer. It is also alleged in said bill that a commodious school, costing some $10,000, has been erected for the white children of school age, and that no provision whatever has been made, by building or otherwise, for the accommodation of the children of African descent. The prayer of the bill is that the said act of February 23, 1876, and the general act of July 6, 1893, be declared unconstitutional and void in so far as they attempt to make any discrimination between the white people and people of the African race residing in said city and district, or the property belonging to said people, and the levying of taxes on said property, or the collection or disbursement of the same for school purposes, or in the disbursement of any fund received or held by the defendants from any source whatever, 'and that the said defendants be restrained by an order of this honorable court, and perpetually enjoined, from failing or refusing to disburse all moneys now in the custody or control of the defendants, and all moneys that may be received by them hereafter for the conducting or carrying on schools exclusively for white children, and from disbursing said funds now in their custody, and which may be hereafter received, otherwise than equally among all children residing in said district and city, between the ages of 6 and 20 years, irrespective of race or color of said children. ' And they further pray that the defendants be further restrained and enjoined from failing or refusing to forthwith levy and collect, under and pursuant to the provisions of said act and the general laws of the commonwealth of Kentucky, a tax upon all property, real and personal, situate in said district, etc., and a capitation tax on all persons residing in said district, and forthwith purchase a suitable lot, and cause the erection thereon of a good and substantial school building for the accommodation of all the children of the African race aforesaid.

This bill has been demurred to by the defendants, 'because the matters and things in the bill alleged are not sufficient to constitute a cause of action against them, or either of them, nor can the court, upon the matters and things in the bill alleged, grant the relief prayed for, nor any other relief. ' It will be seen the purpose of the bill seeks a mandatory injunction, not to enforce the law of February, 1876, but to declare it unconstitutional, and, in effect, applying its provisions to colored children as well as to white children.

The first inquiry under the demurrer is whether or not the court has jurisdiction of the subject-matter therein alleged. By the twelfth subdivision of section 563 of the Revised Statutes it is provided...