State v. Wolf

• Decision Date: 16 October 1907
• Citation: 59 S.E. 40,146 N.C. 440
• Parties: STATE. v. WOLF.
• Court: North Carolina Supreme Court

59 S.E. 40

146 N.C. 440

STATE.

v.WOLF.

Supreme Court of North Carolina.

Oct. 16, 1907.

1. Indians—Schools—Compulsory Attendance—Statutes—Validity.

Const, art. 9, § 15, authorizing laws to require the attendance of children at school, em-braces Indians as well as whites and blacks, and hence Laws 1905, p. 227, c. 213, requiring certain Indian children to attend school, is not invalid as exceeding the Legislature's power.

2. Constitutional Law—Class Legislation — Indians — Compelling Attendance at School.

Laws 1905, p. 227, c. 213, requiring certain Indian children to attend school, is not unconstitutional as class legislation.

3. Statutes — Special Laws — Indians — Schools—Compelling Attendance.

Laws 1905, p. 227, c. 213. creating a special school district, and requiring Indian children residing therein to attend school, is not invalid because applying to one locality or district only, and not to the state at large.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Statutes, § 107.]

4. Indians—Schools — Compulsory Attendance.

Laws 1905. p. 227, c. 213, creating a special school district and requiring certain Indian children to attend school, does not compel their attendance at the school maintained within the district by the federal government, but specifically provides that such children may be sent to any other school.

Connor and Walker, JJ., dissenting.

Appeal from Superior Court, Swain County; O. H. Allen, Judge.

Jacob Wolf was acquitted of unlawfully withholding his child from school in violation of Pub. Laws 1905, c. 213, and the state appeals. Reversed.

The Attorney General and Hayden Wolf, Asst. Atty. Gen., for the State.

W. T. Crawford, for defendant.

CLARK, C. J. Chapter 213, p. 227, Laws 1905, reads as follows:

"Section 1. That all within the boundary known as the 'Qualla boundary' of the Cherokee Indian lands in Jackson and Swain counties, In which is located the government Indian school at Cherokee, N. C, be and the same is hereby constituted a special school district.

"Sec. 2. That all children within said boundary are hereby compelled to attend school at least nine months in each calendar year between the ages of seven and seventeen years: provided, the government of the United States shall furnish such school with all proper facilities, together with board, clothing, books, medicine, medical attendance and other necessary expenses: provided, further, that nothing in this act shall compel any sick or otherwise disabled child, or any child who Is sole person or necessary for the care or waiting on of any sick parent, or for legal or lawful excuse, to attend said school: provided further, that nothing in this act shall prevent the proper school authorities from excusing any child from the provisions of this act, when in their judgment they deem it necessary: provided, further, that this act shall not apply to children in said boundary attending some other school for a like time and period.

"Sec. 3. That it shall be unlawful for any parent or guardian to withhold any child from school, and upon conviction shall be fin ed or imprisoned at the discretion of the court.

"Sec. 4. That the proper authorities of said school shall have authority to take charge of any of said children of said district, wherever found, and place and keep them in said schools for the period above expressed: provided, that nothing in this act shall allow any person to mistreat or abuse said, child or children or use any more force than is necessary to carry this act into force and effect.

"Sec. 5. That nothing in this act shall apply to any child, parent or guardian with less than one-eighth Indian blood."

The defendant was indicted for violation of this act, and the jury returned the following special verdict: "We find that at the commencement of this action, and for a year prior thereto, there was a school maintained by the government of the United States within the Qualla boundary, furnished with all the proper facilities, together, with board, clothing, books, medicine, medical attendance, and other necessary expenses; that the defendant was the father of a child between the ages of 7 and 17; that he did not send said child to the said school for nine months during the last school year; that said child is more than one-eighth Indian blood; that said child was not sick, disabled, or necessary for the care or waiting upon of any sick parent; that said child was not in attendance on any other school for a period of nine months during said school year, nor was said child excused from attendance by the proper school authorities; that said defendant resided within the Qualla boundary; that the said school is under the entire control of the United States, and the said school is in no way under the control or management of the board of education, or school committee, or taught by any teacher under employment of the state. If, upon this special verdict the court be of the opinion that the defendant is guilty, then we, the jury, find him guilty; but, if the court be of the opinion that he be not guilty, then we find him not guilty." The defense seems to rest its case upon three propositions: (1) The defendant is not a citizen of the state, and hence the act is beyond the power of the state Legislature. (2) That the act applies only to Indians, and hence is class legislation, and unconstitutional. (3) It is unconstitutional to select out one school district or locality and make education compulsory therein, without applying the same regulation to the rest of the state.

Const, art. 9, § 15, provides: "The General Assembly is hereby empowered to enact that every child of sufficient mental and physical ability, shall attend the public schools during the period between the ages of six and eighteen years, for a term of not less than sixteen months, unless educated by other means." The authority is as to "every child" between the ages of 6 and 18, and embraces Indians, as well as white and blacks. We have long had legislation for separate schoolsfor the Croatans in Robeson. In State v. Ta-cha-na-tah, 64 N. C. 614, it was held that the Cherokee Indians resident in this state are subject to our criminal laws; the court saying: "Prima facie, all persons within the state are subject to its criminal law and within the jurisdiction of this court. If any exception exists, it must be shown. Upon examination of the treaty of New Echotah, Ga., on December 29, 1835, between the United States and the Cherokee Indians, we find that by article 12 it was provided that individuals and families who were averse to moving west of the Mississippi river might remain and become citizens of the states where they resided. * * * Unless ex. pressly excepted, our laws apply equally to all persons, irrespective of race." In Cherokee Nation v. Georgia, 5 Pet. (U. S.) 1, 8 L. Ed. 25, and Worcester v. Georgia, 6 Pet. (U. S.) 515, 8 L. Ed. 483, it is held: "It is the universal doctrine of the public law that the Indians are the domestic subjects of the particular European or American state in which they may happen to be." There are bands of Indians still surviving in New York, Georgia, Wisconsin, and in many other states, and the decisions on this point are summed up and reviewed in State v. Doxtater, 47 Wis. 278, 2 N. W. 439. These decisions show that Indians are subject to the general laws of the state, unless specially excepted, and that they are usually excepted In laws as to taxation and game laws, but not in this state. In this case the General Assembly did not exempt Indians, but specially provided for the application of this law to them in this district. In Re Cherokee Trust Funds, 117 U. S. 309 (bottom of page) 6 Sup. Ct. 728 (29 L. Ed. 880), it is said of the Cherokees in North Carolina, "They are citizens of that state, and bound by its laws."

The second objection, that this is class legislation and unconstitutional, is equally untenable, as is also the third objection, that it applies to only one locality or district. The Constitution does provide (article 9, § 2): "The children of the white race and the children of the colored race shall be taught in separate public schools, but there shall be no discrimination in favor of, or to the prejudice of either." The white and colored races compose the bulk of the people of this state, and the object of this provision is plain, but it is clear that this special act in regard to the Indians of the Qualla school district is "no discrimination in favor of, or to the prejudice of, either" the white or colored race. And it is also well settled that the Legislature can meet the needs of one county, district, or locality without making the same act apply to the whole state. This was held as to the sale of intoxicating liquor (State v. Joyner, 81 N. C. 534; State v. Stovall, 103 N. C. 416, 8 S. E. 900; State v. Barringer, 110 N. C. 525, 14 S. E. 781; State v. Snow, 117 N. C. 774, 23 S. E. 322), restricting sale of seed cotton in certain localities (State v Moore, 104 N. C. 714, 10 S. E. 143, 17 Am. St. Rep. 696), as to no fence laws (Broadfoot v. Fayetteville, 121 N. C. 418, 28 S. E. 515, 39 L. R. A. 245, 61 Am. St. Rep. 668), as to mode of working public roads (Tate v....