Marion v. Territory ex rel. Wilson

• Decision Date: 27 January 1893
• Citation: 1 Okla. 210,1893 OK 6,32 P. 116
• Parties: MARION et al., Board of School Trustees, v. TERRITORY ex rel. Wilson
• Court: Oklahoma Supreme Court

1893 OK 6

32 P. 116

1 Okla. 210

MARION et al., Board of School Trustees, v. TERRITORY ex rel. Wilson

Supreme Court of Oklahoma

Decided: January 27, 1893

Appeal from the District Court of Logan County, Hon. E. B. Green, Judge.

Syllabus

¶0 1. PETITION--Cause of Action--In an action by the Territory, on the relation of a resident of a ward of a city, against the members of the school board and city superintendent of schools, to compel defendants to admit relator's children to the ward school as pupils, the petition showed that while a regular term of said school was being held, relator applied to have his children, who were eligible and qualified, admitted to the school; that the application was refused by the teacher and by defendants, for the reason that his children were colored, and said school was established by the school board exclusively for white pupils. A writ of mandate, containing all the substantive averments of the petition, was duly issued. Held, that the petition stated a good cause of action, and a demurrer thereto and to the writ was properly overruled.

2. PUBLIC SCHOOLS--Separate Schools for colored children--St. c. 79, art. 13. § 1, relating to public schools, provides that separate schools for white and colored children may be established in the Territory as follows, "and in no other way." Section 4 provides that "not more than twenty days, nor less than ten days prior to" an election to determine the question of establishing separate schools for white and colored pupils, "the county commissioners of each county shall appoint in each election precinct in their respective counties two judges and one clerk, whose duty it shall be to hold said election." Section 8 provides that "any failure to comply with any and all the provisions of this act shall render such act of establishing separate schools void, etc." Held, that the provision relative to the time of judges and clerks was directory only, and the fact that they were appointed 26 days prior to the election was not such failure to comply with the statute as would render the election void. Green, C. J., dissenting.

3. SPECIAL ELECTION--General Election--Where a specific chapter of the statutes provides for a system of common schools, and is complete within itself, an election held in compliance with its provisions to determine the question as to whether separate schools shall be established for colored pupils, is not invalid because not conducted as required by the statute governing general elections known as the "Australian System."

Action by the Territory of Oklahoma, on the relation of John Wilson, against Francis E. Marion and others, members of the public school board of the city of Guthrie, and Edward L. Hallock, city superintendent of schools of the city of Guthrie, to compel the defendants to admit the relator's children as pupils to a certain ward school of said city. From a judgment for plaintiff, defendants appeal. Reversed.

H. S. Cunningham, for Appellants.

Brown & Soward, for Appellees.

BURFORD, J.

¶1 The relator John Wilson brought his action in the district court of Logan county, praying for a writ of mandate against the defendants compelling them to admit his two children, Eva aged ten years and Janetta aged nine years, as pupils in the fourth ward school of said city, the petition shows that he and his wife are residents of said ward and have been for the two years last past, that his daughters are illegible and qualified to be admitted as pupils in said school.

¶2 That a regular term of said public school was being held and taught at said school and that he had taken his two daughters to said school and applied to have them admitted and enrolled as pupils. Which application had been refused by the teacher of said school and refused and denied by the defendants, for the reason that his children were colored, and that said school was established by the school board exclusively for white pupils.

¶3 An alternative writ of mandate was issued commending the defendants to appear and show cause why said children should not be admitted as pupils in said school.

¶4 The defendants appeared and demurred to said alternative writ, for the reason that said writ did not state facts sufficient to constitute a cause of action against the defendants.

¶5 This demurrer was overruled and exception saved. There was no error in this ruling; the complaint states a good cause of action and the writ contains all the substantive averments of the complaint.

¶6 The defendants then filed their answer.

¶7 The first paragraph is a general denial.

¶8 They next admit that they are the official school board and superintendent of the public schools of the city of Guthrie, and that they have refused the relators children the privilege of attending the fourth ward school of said city. But they further allege that pursuant to the provisions of Art. 13 of Chap. 79 of the Statutes of Oklahoma, an election was duly held on the first Tuesday of April A. D. 1891, and at said election there was duly submitted to the qualified school electors of said county, and by them voted for or against the proposition of the maintenance of separate school for white and colored children in said county, that returns of said election were duly made as required by law and the board of county commissioners of said county duly canvassed the said returns., and published the result in the Guthrie Daily News, and Oklahoma State Capital, news papers published in said county. That at said election the majority of the votes cast were in favor of the establishment of separate schools for white and colored children in said county. That the board of county commissioners pursuant to the provisions of said statutes, levied and caused to be extended upon the tax rolls of said county, a tax of five mills upon the dollar upon all the taxable property in said county in addition to all other taxes provided for by law and that same is sufficient to maintain separate schools in said county during the current school year.

¶9 That they have done all things necessary for the maintenance of separate schools for the education of white and colored children, by providing suitable buildings, and furnishing them with suitable furniture and appliances and have employed competent, capable and qualified teachers for said schools.

¶10 That the whole number of schools maintained and teachers employed in said city number sixteen, thirteen of which are assigned for the use of and are attended exclusively by white pupils; and three of which are assigned to the use of and attended exclusively by colored pupils, and that all of said schools are graded according to the attainments and proficiency of said pupils. That all of said schools are located within the corporate limits of said city and are centrally and conveniently located, and all pupils white and colored have convenient access thereto. That the schools maintained by said board of education of the colored children are equal in every way to those maintained for education of white children, and that all are supplied with equal facilities for acquiring an education.

¶11 That the relator has been sending his children to one of said schools provided for colored children, and that they were not denied the privilege of the public schools of said city. But were only denied the right to attend as pupils at a school maintained exclusively for white pupils.

¶12 The relator replied to this answer by general denial.

¶13 The cause was submitted to the court for trial by agreement of parties, and after hearing the evidence, at the request of both parties made a special finding of facts, and stated his conclusions of law therein in writing.

¶14 The finding of facts and conclusions of law, present to this court, the errors complained of.

¶15 The court found the facts to be as follows: That the relator John Wilson is a colored man residing within the Fourth ward of the city of Guthrie; that his children are colored children and resides with him, that they were by Edward L. Hallock, superintendant of the public schools of the city of Guthrie, under the direction of the board of education, of such city denied admission into the schools of said ward for the reason that they were colored children.

¶16 That pursuant to the provision of Art. 13 of Chap. 79 of the Statutes of Oklahoma, an election was duly held on the first Tuesday of April, 1891, at which election there was duly submitted to the qualified school electors of the county of Logan the proposition of the maintenance of separate schools for white and colored children in said county; that said electors at such election voted upon such questions; that returns of such election were duly made and canvassed within the time and in the manner prescribed by law; and the result of said election was duly published as required by law; that said result showed a large majority in favor of separate schools for education of white and colored children; that the defendant school board proceeded to hire teachers and suitable buildings and to furnish the necessary equipments and furniture for the maintenance of separate schools for the education of white and colored children in said city, and at the date when the said Wilson was refused admission into the schools of the Fourth ward he was informed that his children would be admitted in the school of the proper grade maintained in the Third ward of said city for the education of colored children, that he sent his children to said school and that at the date of this hearing they were attending the same and enjoying the privileges thereof.

¶17 That said schools maintained for the education of colored children as aforesaid are equal in every respect to those maintained for the education of white children, equal in the character and the qualifications of teachers, equal in the buildings furniture and appliances, equal in the grades maintained and branches taught, the colored pupils having...