McMillan v. School Committee

• Decision Date: 08 December 1890
• Citation: 12 S.E. 330
• Parties: McMILLAN v. SCHOOL COMMITTEE.
• Court: North Carolina Supreme Court

12 S.E. 330

McMILLAN v. SCHOOL COMMITTEE.

Supreme Court of North Carolina

December 8, 1890

Appeal from superior court, Robeson county; SHIPP, Judge.

Proceeding in mandamus brought by plaintiff to compel the admission of his children into a school taught in what was known as "School-District No. 4." (Croatan.) J. A McAllister, witness for plaintiff testified that he was superintendent of public instruction for the county, and that plaintiff complained to him that defendants refused to receive his children into the school. The county board of education had charge of all the schools in the county, white and colored; and, in accordance with the act of 1885, giving to the Croatan Indians in Robeson county separate schools caused the census of said Indians to be taken, and school-districts laid off for them. That plaintiff's children were not included in said census. Plaintiff offered in evidence the following paper, which was excepted to by defendant, but allowed by the court: "It is ordered by the board of education that Nathan McMillan [plaintiff] be assigned to Croatan District No. 4, and the committee of said district are hereby directed to receive his children into the public school of said district. By order of the board of education, this September 3, 1888. [Signed] J. A. McALLISTER Clerk." Witness said the signature was his, and he thought the order had been read to the board of education. No order in relation to the matter was ever recorded in the minutes, but he stated that all the orders of the board are recorded in a book kept for that purpose. The board took no vote on the matter. It was done simply to try to arrange the differences between them without intending that it should be enforced as an official order. The board did not pass upon the question as to whether plaintiff's children were Croatan Indians, and plaintiff does not claim to be a Croatan Indian. Reputation is that plaintiff was a slave. It was stated that his wife was a Croatan, and lived in the district. Prior to the passage of said act, the children of Croatan Indians were assigned to colored schools. The territory in which plaintiff lives is both a Croatan and colored school-district, and there are equal school facilities for each class,--as convenient as possible for each. One Barton, witness for plaintiff, testified that the wife of plaintiff is a Croatan, and sister of one of the defendants. Witness says that plaintiff says he is not a Croatan. Plaintiff's father was a white man. De endants except to the testimony introduced, to the effect that the class now called "Croatans" were called "mulattoes" before the act was passed. D. C McMillan, witness for the defendants, testified that the plaintiff was a slave, and belonged to his father, and that he never knew Croatans to be slaves. There was testimony of other witnesses to the same effect. The following issues were submitted to the jury: "(1) Are plaintiff's children Croatan Indians? Answer. No. (2) Were plaintiff's children included in the census taken under the act of 1885? A. No. (3) Are plaintiff's children of negro blood within the fourth degree? A. Yes. (4) Did the board of education of Robeson county order plaintiff's children to be received in said school? A. Yes." The plaintiff asked the following instructions: "That, if jury believe the evidence as to the children of Nathan McMillan being negroes within the fourth generation, their answer should be in the negative as to third issue." The court declined to give the instruction, except in so far as it was given in the charge, and charged the jury as follows: "That, it being admitted that plaintiff himself was not a Croatan Indian, but only his wife, they must answer the first issue, 'No;' they must be guided by the evidence as to the second issue; and that the main issue was the third. And they must determine from the whole testimony as to the third issue; if they believe from the testimony that plaintiff was a slave, the law would raise a presumption that he was a negro, it being a matter of common knowledge that none but negroes were slaves in this country. In order to find that children of plaintiff are of negro blood within the fourth degree, they should consider that from the children to the father the plaintiff is one degree; from plaintiff to parent would be the second degree; from children to grand-parent would be the third degree; and from children to great-grand-parent would be the fourth degree. And if they believe, from the evidence, that plaintiff's father was a white man, they must also be satisfied, from the evidence, that plaintiff's mother was a negro, in order to make plaintiff's children negroes within the fourth degree, and thus within the prohibition of the Croatan act, above mentioned. If, from the whole testimony, they are satisfied that plaintiff's children are negroes within the fourth degree, they will answer the third issue, 'Yes,' otherwise, 'No.' They will answer the fourth issue, 'Yes."' Plaintiff moved for a new trial, for refusal to give the instruction asked; motion denied and plaintiff excepted. Motion for judgment on fourth issue non obstante veredicto; motion denied, plaintiff excepted, and appealed from the judgment rendered.

T. A. McNeil and J. D. Shaw, for appellant.

William Black, for appellee.

AVERY J., (after stating the facts as above.)

We think that the legislature was not prohibited by the constitution from providing separate schools, to be governed by committees of their own race, and taught by teachers selected by such committees, for those persons now residing in Robeson county who claim to be descendants of the friendly tribe of Indians known as "Croatans," and that the act of 1885, c. 51, as amended by chapter 60 of the Laws of 1889 (which amendatory act excludes all negroes "to the fourth generation" from the privilege of attending said schools,) is valid, and should been forced. If it had not been provided in section 2, art. 9, of the constitution that the children of the white race should be taught in schools separate and distinct from those in which children of the colored race should receive instruction, but that there should be no discrimination in favor of or to the prejudice of either race, the same end might have been attained by enacting a statute embodying similar provisions, just as intermarriages between whites and negroes or Indians "to the third generation" were prohibited by ...