Reynolds v. The Board of Education of The City of Topeka

• Court: Kansas Supreme Court
• Writing for the Court: BURCH, J.:
• Citation: Reynolds v. The Board of Education of The City of Topeka, 72 P. 274, 66 Kan. 672 (Kan. 1903)
• Decision Date: 11 April 1903
• Docket Number: 13,140
• Parties: WILLIAM REYNOLDS v. THE BOARD OF EDUCATION OF THE CITY OF TOPEKA

72 P. 274

66 Kan. 672

WILLIAM REYNOLDS v. THE BOARD OF EDUCATION OF THE CITY OF TOPEKA

No. 13,140

Supreme Court of Kansas

April 11, 1903

Decided January, 1903.

Original proceeding in mandamus.

Writ denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW -- Separate Schools for White and Colored Children -- Act of 1879. Chapter 81, Laws of 1879 (Gen. Stat. 1901, §§ 6290-6296), providing that boards of education in cities of the first class shall have power to organize and maintain separate schools for the education of white and colored children, except in the high school, is not invalidated by the fact that it purports to amend a former statute which had previously been repealed by implication.

2. CONSTITUTIONAL LAW -- Subject Clearly Expressed in Title. The act referred to is not violative of section 16 of article 2 of the constitution, providing that no bill shall contain more than one subject, which shall be clearly expressed in its title.

3. CONSTITUTIONAL LAW -- System is Uniform. Such act does not violate section 2 of article 6 of the constitution providing for the establishing of a uniform system of common schools.

4. CONSTITUTIONAL LAW -- Not Violative of Fourteenth Amendment. Such act does not violate the fourteenth amendment to the constitution of the United States, prohibiting any state from denying to any person within its jurisdiction the equal protection of the laws.

G. C. Clemens, and F. J. Lynch, for plaintiff.

J. W. Gleed, J. L. Hunt, and Gleed, Ware & Gleed, for defendant.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

The board of education of the city of Topeka, a city of the first class, provides for the education of colored children in schools separate from those maintained for white children, in all grades below the high school. The plaintiff, a colored man, a citizen of the United States, and a resident of the city, presented his son at a school which white children only were allowed to attend, and demanded that he be received and taught there. The child was eligible to instruction at that school, except for his color, and on this account was refused admission, and consigned to a school in the same neighborhood provided for the colored race, and from which white children were excluded. Thereupon this proceeding was brought to compel the board, by writ of mandamus, to admit the colored boy to the white school.

In Board of Education v. Tinnon, 26 Kan. 1, and Knox v. Board of Education, 45 id. 152, 25 P. 616, 11 L. R. A. 830, it was decided that, without clear legislative authority, boards of education in cities of the second class have no power to establish separate schools for the education of white and colored children, and the same express legislative warrant must appear for such action on the part of a board of education of a city of the first class, or it cannot be sustained. Does such a statute exist?

The question is not free from difficulty. Chapter 18 of the Laws of 1868 is entitled "An act to incorporate cities of the first class." The chapter is divided into six articles relating to various subjects. Article V is devoted to the general topic of the maintenance of schools, and covers all the details of that subject. Section 75 of that article reads as follows:

"The board of education shall have power to select their own officers; make their rules and regulations, subject to the provisions of this act; to organize and maintain separate schools for the education of white and colored children; to establish a high school whenever, in their opinion, the educational interests of the city demand the same; and to exercise the sole control over the public schools and school property of the city."

In 1876 the legislature, by an act entitled "An act for the regulation and support of common schools," codified the school laws of the state, and embodied in one comprehensive chapter (No. 122) all matters pertaining to the subject expressed in that title. Article X of this chapter relates to public schools in cities of the first class, and provides that all cities of more than 15,000 inhabitants shall be governed thereby. Section 4 of this article is the counterpart of section 75 of article V, chapter 18, Laws of 1868, and reads as follows:

"The board of education shall have power to select their own officers; to make their rules and regulations, subject to the provisions of this act; to establish a high school, whenever in their opinion the educational interests of the city demand the same; and to exercise the sole control over the public schools and school property of the city."

It will be observed that the clause of former section 75, authorizing the organization and maintenance of separate schools for the education of white and colored children, is omitted from this section. Since the law of 1876 was intended to be a complete revision of the school laws of the state, the law of 1868 upon that subject was repealed by implication, and with it the authority to establish separate race schools. While many provisions of the former law may be found in the revision, this did not operate to preserve the divisions of the statute containing them. So far as the provisions of the new law are the same as those of the old, they are to be construed as a continuation of such provisions, and not as a new enactment. (Gen. Stat. 1901, § 7342.) But this applies to provisions only, and not to chapters, articles or sections, as such, which are eliminated by the repeal.

In 1879 a statute was passed (Laws 1879, ch. 81; Gen. Stat. 1901, §§ 6290-6296) with the following title:

"An act to amend an act entitled 'An act to incorporate cities of the first class,' approved February 24, 1868, and to authorize boards of education of cities of the first class to refund certain bonds."

Section 1 of this act reads as follows:

"Section seventy-five of the act entitled 'An act to incorporate cities of the first-class,' approved February twenty-fourth, eighteen hundred and sixty-eight, is hereby amended so that the same shall read and be as, follows: Section 75. The board of education shall have power to elect their own officers, make all necessary rules for the government of the schools of said city under its charge and control, and of the said board, subject to the provisions of this act and the laws of this state; to organize and maintain separate schools for the education of white and colored children, except in the high school, where no discrimination shall be made on account of color; to exercise the sole control over the public schools and school property of said city; and shall have the power to establish a high school, and maintain the same in whole or in part, by demanding, collecting and receiving a tuition fee for and from each and every scholar or pupil attending such high school."

Section 2 amends section 76 of the act of 1868, which related to the organization of the board of education, the selection of its officers, and of a superintendent of schools, the date of the termination of the fiscal year, and to official reports to be made to the board. Sections 3, 4, 5, 6 and 7 embody new legislation on the subject of refunding bonds. This statute must furnish authority for the order of the board of education in controversy or none exists.

It is contended that, since the law of 1879 purports to amend a statute already repealed by implication, it is void, and authorities are cited to that effect. ( Blakemore v. Dolan et al., 50 Ind. 194; Hall et al. v. Craig et al., 125 id. 523, 529, 25 N.E. 538; State, ex rel. Seward Co., v. Benton, 33 Neb. 823, 51 N.W. 140; L. & N. R. R. Co. v. City of East St. Louis, 134 Ill. 656, 25 N.E. 962.)

In this state the constitution contemplates that repealed acts may be revived if only the new enactment contain all the revived matter and do not merely make reference to it. (Art. 2, § 16.) The requirement that acts amendatory of sections shall include the entire section or sections amended is designed to prevent amendments by mere reference and amendments by merely inserting or striking out; but there is no constitutional inhibition upon the legislature's adopting a repealed law as the basis of a new enactment, and if it should choose to employ such a method of registering its purpose that fact alone ought not to defeat its will. Statutes are not to be so lightly nullified. Although they were no longer operative as laws, sections 75 and 76 remained upon the records in the office of the secretary of state, and continued to be cognizable from the statute-books in which they had been printed. Their subject-matter continued to be open fields for legislation. It is perfectly manifest that the legislature intended to reenact their provisions with such modifications as were necessary to meet the requirements of the inhabitants of cities of the first class, and intended the law upon those subjects thereafter to be as disclosed by sections 1 and 2 of the act of 1879. This intention must, therefore, be given full effect. There is no doubt that this may be done whenever the amended section retains its place in the original act. (The State v. Brewster, 39 Ohio St. 653; Jones v. Commissioner of the State Land Office, 21 Mich. 236; Basnett v. City of Jacksonville, 19 Fla. 664; Commonwealth v. Kenneson, 143 Mass. 418, 9 N.E. 761.) And in other cases where the power of the legislature over the subject-matter exists and its purpose is plain, the last law has been allowed to stand as an independent enactment.

In People, ex rel. Strough, v. Canvassers, 143 N.Y. 84, 88, 37 N.E. 649, affirming People v. Board of County Canvassers, 28 N.Y.S. 871, it was said:

"But this case may rest, for its decision, upon the broad principle that chapter 414 of the Laws of...