April 21, 1914. The opinion of the Court was delivered by This is an application for a writ of certiorari for the purpose of determining by what authority the trustees summarily dismissed Herbert Kirby. Eugene Kirby, and Dudley Kirby from attending as pupils the Dalcho school, of Dillon county, for white children.
The facts out of which the controversy arose, and the action taken by the county board of education, will appear from the following decision rendered by them: "On or about the 24th day of January, 1913, John D. Coleman, Lawrence *Page 323 E. Dew, and J.F. Williams, constituting the board of trustees of Dalcho public school, dismissed Herbert Kirby, Eugene Kirby, and Dudley Kirby from the white public school of that district. This proceeding was commenced by George W. Tucker, as guardian of the above named children, by petition to this board for a rule to show cause why the wards of petitioner should not be reinstated in the white public school of the district. The rule, as prayed for, was issued by the chairman of the county board, and the trustees of said school appeared on the 14th day of February, 1913, and filed their return to the rule, on which day the hearing of the matter was commenced, and same was completed on the 24th day of February, 1913. We deem it unnecessary to discuss in detail the questions raised by the testimony. Subdivision 3 of section 1761, vol. I, Code of Laws of 1912, gives school trustees the power `to suspend and dismiss pupils, when the best interest of the school makes it necessary.' We understand, of course, that this section does not confer upon school trustees any power or authority to arbitrarily suspend or dismiss from school any child or children within their district. To the trustees of a school district is intrusted the welfare and best interests of their school, and this power to suspend or dismiss can be exercised by them in a proper case only when the welfare and best interest of such school renders such action absolutely necessary. Also the exercise of such power is always under the supervision of, and subject to review by, the county board of education, as, indeed, are all of the official acts of the trustees of a district. The return of the trustees to the rule shows, we think, that the action taken by them in this matter was for the best interest of the schools in the district. We find that all the material allegations set forth in the return are sustained by the testimony. After having given the matter careful consideration, we are of the opinion that the action of the trustees should be sustained. We think, however, proper school facilities should be provided for the wards of petitioner, and *Page 324 all other children of the district in a like situation, as soon as practicable. The return to the rule to show cause herein having been adjudged sufficient, the rule should be discharged, and it is so ordered. It is further ordered herein that the trustees of the district be required to furnish and provide proper school facilities for the wards of petitioner, along with any and all other children similarly situated within the district."
The return of the trustees shows that these children had been attending the Dalcho school two sessions prior to the session during which they were dismissed; that objection had been made at various times to their presence in the school, but, as there were no others of that class attending, the trustees had been loath to take any action; that, shortly before they were dismissed, other children of the same class were attempting to enter the said school, and complaints were being made by its patrons; the trustees saw that, unless all children of that class were dismissed from the school, it would be materially injured. The return further shows that the trustees, in dismissing these children, were not actuated by any feeling of animosity towards them, but that their action was based upon what they deemed to be for the best interest of the school. They further alleged that they were ready and willing to provide a school for all children of this class in that district; that such a school had been provided in the past, but had been discontinued, because of friction among the patrons, and that, since the discontinuance of said school, the trustees had provided for the attendance of such children in other districts where they were allowed to enter the schools. The return also contains the following language: "That respondents are informed and believe that the wards of petitioners are not of pure Caucasian blood, and that this fact is generally known to the citizens of the community, and that it would not be right or proper, or for the best interest of the schools in said district, for the children to attend the white public schools, and for the further *Page 325 reason that the environment and antecedents of the said children, and the knowledge of the public thereof, place them in a separate class from the white people of the community."
There was an appeal to the State board of education, which decided: "That the action of the Dillon county board of education be sustained, and the appeal be dismissed."
The synopsis of the testimony prepared by the petitioner's attorneys will be incorporated in the report of the case.
Section 385 of the Criminal Code, which embodies the provisions of an act passed in 1879, is as follows: "It shall be unlawful for any white man to intermarry with any woman of either the Indian or negro races, or any mulatto, mestizo, or half-breed, or for any white woman to intermarry with any other person than a white man, or for any mulatto, half-breed, negro, Indian, or mestizo to intermarry with a white woman; and any such marriage or attempted marriage, shall be utterly null and void, and of none effect; and any person who shall violate this section * * * shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished."
Section 33, art. III, of the Constitution, provides that: "The marriage of a white person with a negro or mulatto, or person who shall have one-eighth or more negro blood, shall be unlawful and void."
Section 7, art. XI, of the Constitution, is as follows: "Separate schools shall be provided for children of the white and colored races, and no child of either race shall ever be permitted to attend a school provided for children of the other race."
Section 1780, Code of Laws 1912, provides that: "It shall be unlawful for pupils of one race to attend the schools provided by boards of trustees for persons of another race."
The first question for consideration is whether section 33, art. III, of the Constitution, which provides that "the marriage of a white person with a negro or mulatto, or person who shall have one-eighth or more of negro blood, shall be *Page 326 unlawful and void," entitles the child or parents, where one of them was a white person, and the other had less than one-eighth of negro blood, to be classed as a white person, in the exercise of his legal right.
The most sacred relation into which a man and woman may enter by contract with each other is that of marriage; yet the framers of our Constitution made it a part of our organic law that it should be lawful for a white person to marry another with negro blood, provided it was less than one-eighth. Such being the case, we are unable to discover any good reason why the child of such parents should not be entitled to exercise all the legal rights of a white person, except those arising from a proper classification, when equal accommodations are afforded. As, however, the right to classify is denied, the next question which naturally suggests itself for consideration is that relating to the power of classification in such cases.
We therefore proceed to determine whether the law allows a proper classification to be made between those without negro blood and those with less than one-eighth, when there is a provision for equal accommodation.
The law recognizes that there is a social element, arising from racial instinct, to be taken into consideration between those with and those without negro blood. The statutes and provisions of the Constitution hereinbefore quoted show that the law not only recognizes a classification, but makes it mandatory, and provides a penalty for failure to observe the laws in this respect, in the instances therein mentioned. The decisions prior to the abolition of slavery show that the classification between white and colored persons did not depend upon the extent of the mixed blood.
The rule was thus stated by Chancellor Harper, who delivered the opinion of the Court, in State v. Cantey, 2 Hill 614: "We cannot say what admixture of negro blood will make a colored person, and by a jury one may be found a colored *Page 327 person while another of the same degree may be declared a white man. In general, it is very desirable that rules of law should be certain and precise; but it is not always practicable, nor is it practicable in this instance, nor do I know that it is desirable. The status of the individual is not to be determined solely by the distinct and visible mixture of negro blood, but by reputation, by his reception into society, and his having commonly exercised the privileges of a white man. But his admission to these privileges, regulated by the public opinion of the community in which he lives, will very much depend on his own character and conduct; and it may be well and proper that a man of worth, honesty, industry, and respectability, should have the rank of a white man, while a vagabond of the same degree of blood should be confined to the inferior caste. It will be a stimulus to the good conduct of these persons, and security for their fidelity as citizens."
The following language was used by the Court in the case of White v. Tax Collector, 3 Rich. 136: "It may happen that persons in equal degree from the African stock may present such different complexions and features that they would readily be assigned to different castes. Habit and education have so strongly associated with the European race the enjoyment of all the rights and immunities of freedom that color alone is felt and recognized as a claim. On the contrary, a strong repugnance prevails against a participation in the rights of citizenship by any who bear in their persons the traces of their servile origin. This aversion is, however mitigated by the deference which honesty, sobriety, and industry, and the qualities that unite in a respectable character, enforce on the mind. * * * Whatever rules may be adopted, the question of the reception of colored persons into the class of citizens must partake more of a political than a legal character, and, in a great degree, be decided by public opinion, expressed in the verdict of a jury." *Page 328
In the case of Flood v. News and Courier Co., 71 S.C. 112,50 S.E. 637, 4 Ann. Cas. 685, this Court quoted with approval, the following charge of his Honor, the presiding Judge, in Smith v. Chamberlain, 38 S.C. 529, 17 S.E. 371, 19 L.R.A. 710: "Among the citizens of South Carolina we have two distinct races. Before the law they are equal. The colored race, in our Courts of justice, stand on the same plane as the white race. Our laws bear equally on all, without regard to race, color, or previous condition. Our social conditions, however, are very different. Friends, companions, neighbors must be of our own choice. These relations and associations the law does not undertake to make or regulate for us. If we do not wish to associate with one class of society, there is no law that I know of which compels us to do so."
We also quote as follows from Flood v. News andCourier, 71 S.C. 112, 50 S.E. 637, 4 Ann. Cas. 685: "Now, it must be apparent from consulting the texts of these amendments (thirteenth, fourteenth, and fifteenth to the Constitution of the United States), that there is not the slightest reference to the social conditions of the two races, and nothing can be imported into these amendments to give any such effect. All take pleasure in bowing to the authority of the United States in regard to these three amendments, but we would be very far from admitting that the social distinction subsisting between the two races has been in any way affected." The Court then quoted with approval the following language, used by the Court of Appeals of New York in the case of People v. Gallagher, 93 N.Y. 438, 45 Am. Rep. 232: "This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized and performed all of the functions *Page 329 respecting social advantages with which it is endowed." The Court also immediately thereafter quoted the following language from Plessy v. Ferguson, 163 U.S. 537,16 Sup. Ct. 1138, 41 L.Ed. 256: "Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane."
In the case of Plessy v. Ferguson, 163 U.S. 537,16 Sup. Ct. 1138, 41 L.Ed. 256, the Court further says: "The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters, and railway carriages has been frequently drawn by this Court. * * * A statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races. * * * The object of the fourteenth amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the State legislatures, in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for the white and colored children, which has been *Page 330 held to be a valid exercise of the legislative power even by Courts of States where the political rights of the colored race have been longest and most earnestly enforced."
One of the earliest decisions in such cases is that of Roberts v. City of Boston, 5 Cush. (Mass.) 198, in which Chief Justice Shaw said: "The great principle, advanced by the learned and eloquent advocate for the plaintiff (Mr. Charles Sumner), is that, by the Constitution and laws of Massachusetts, all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. * * * But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security."
In the case of Ex parte Plessy, 45 La. Ann. 80, 11 So. 948, 18 L.R.A. 639, the Court says: "Even were it true that the statute is prompted by a prejudice on the part of one race to be thrown in such contact with the other, one would suppose that to be a sufficient reason why the pride and self-respect of the other race should equally prompt it to avoid such contact, if it could be done without the sacrifice of equal accommodations. It is very certain that such unreasonable resistance upon thrusting the company of one race upon the other, with no adequate motive, is calculated, as suggested by Chief Justice Shaw, to foster and intensify repulsion between them, rather than to extinguish it."
While the testimony shows that the children are entitled to be classed as white, nevertheless the action of the board of trustees was neither capricious nor arbitrary, as they are willing to provide equal accommodations for the Kirby children and those in the same class with them. The testimony *Page 331 also shows that the decided majority of the patrons would refuse to send their children to the Dalcho school if the Kirby children were allowed to continue in attendance. Tested by the maxim, "The greatest good to the largest number," it would seem to be far better that the children in question should be segregated than that the large majority of the children attending that school should be denied educational advantages.
Subdivision 3 of section 1761, Code of Laws 1912, which provides "that the board of trustees shall also have authority, and it shall be their duty to suspend or dismiss pupils, when the best interest of the schools make it necessary," shows that the action of the trustees in dismissing the said children, was justified by the law of the land, and that the petition should be dismissed.
Petition dismissed.