Lehew v. Brummell

• Decision Date: 09 March 1891
• Parties: LEHEW et al. v. BRUMMELL et al.
• Court: Missouri Supreme Court

15 S.W. 765

103 Mo. 546

LEHEW et al. v. BRUMMELL et al.

Supreme Court of Missouri, Division No. 1.

March 9, 1891.

CIVIL RIGHTS — SEPARATE NEGRO SCHOOLS — ACTIONS AGAINST INFANTS.

1. Const. Mo. art. 11, § 3, requires separate free schools to be established for the education of negro children. Acts Mo. 1887, p. 264, § 1, provides that a school for negro children shall be established in any school-district where there are 15 or more of such children of the required age. Section 2 provides that where there are less than 15 of such children, they may attend school in any district in the county where a separate school is maintained for negro children. Held, not a violation of Const. U. S. amend. 14.

2. Under Rev. St. Mo. 1879, § 3477, declaring that after infant defendants have been served with process the suit cannot proceed until a guardian ad litem has been appointed, a judgment rendered against infants without the appointment of such guardian will be reversed.

Appeal from circuit court, Grundy county; G. D. BURGESS, Judge.

E. M. Harber, for appellants. R. A. De Bolt, for respondents.

BLACK, J.

The five plaintiffs in this case resided in school-district No. 4 in Grundy county, and each has children entitled to attend the public school maintained therein for the education of white children. In September, 1887, when this suit was commenced, the defendant Barr was the teacher, and three of the defendants were directors of the school-district. The defendant Brummell is a man of African descent, and at the last-mentioned date had four children, all of whom resided with him in said district, and were of the ages entitling them to attend the public schools. These four children were the only colored children of school age in the district. No separate school was ever established or maintained therein for the education of colored children, but there was such a separate school in the town of Trenton, in the same county, three and one-half miles from Brummell's residence. No white child in district No. 4 had to go more than two miles to reach the school-house. These colored children were permitted to attend the school maintained for white children in district No. 4 for a short time. On the foregoing facts a temporary injunction was awarded the plaintiffs, restraining Brummell's children from attending the school so established for white children, which was made perpetual on the final hearing of the cause, and the defendants appealed.

But two questions are presented by the briefs for our consideration. The first is that the laws of this state concerning the education of colored children are in conflict with section 1 of the fourteenth amendment of the constitution of the United States, and therefore void. Section 1, art 11, of the constitution of this state makes it the duty of the general assembly to establish and maintain free public schools for the gratuitous instruction of all persons in this state between the ages of 6 and 21 years; and section 3 of the same article declares: "Separate free public schools shall be established for the education of children of African descent." A system of free public schools has been established by general laws throughout the state, and for all the purposes of this case it will be sufficient to notice the statutes concerning colored schools. The first section of the amendatory act of 1887 (Acts 1887, p. 264) provides: "When there are within any school-district in this state fifteen or more colored children of school age, the school board of such school-district shall be, and they are hereby, authorized and required to establish and maintain within such school-district a separate free school for said colored children;" and the section goes on to say, in substance, that the term of such school, and the advantages and privileges thereof, shall be the same as provided for other schools of corresponding grade. "Should any school board neglect or refuse to comply with the provisions of this section, such school-district shall be deprived of any part of the public funds for the next ensuing year." The second section provides that "when the number of colored children of school age residing in any school-district shall be less than fifteen, they shall have the privilege, and are entitled, to attend school in any district in the county wherein a school is maintained for colored children." Detailed provisions are then made whereby the district in which such children reside must pay its proper share of the expenses of maintaining the school in the other district which the children attend. These statute laws simply carry out and put in operation the command of that section of our constitution before quoted, and the objection now made is leveled at the constitutional provision, and it is that which we are asked to strike down because of the contention that it violates section 1 of the fourteenth amendment of the constitution of the United States, which declares: "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." This section treats of different and distinct subjects, and the defendants do not point out or indicate to us the clause upon which they rely. The clause which declares that all persons born or naturalized in the United States are citizens of the United States and of the...