Dissenting. The appellants are colored men, who, on behalf of themselves and others of their race, residing in school district No. 56, of Crawford county, applied to the circuit court for a writ of mandamus to the school directors, to compel them to employ a teacher for the colored children of the district for an equal time with that for which a teacher of the white children might be employed. They say that they are residents of the district, and show by an affidavit filed that they had in the aggregate about forty children of scholastic age at the last enumeration.
The petition was answered by the directors. There is no contest as to the facts, which are as follows:
The district has two school houses, one for the white and ■the other for the colored children. At the enumeration made in 1883, there were, of scholastic age, in the district, one hundred and three white and twenty-two colored children. There were, when the petition was filed in March, 1885, one hundred and five white and forty colored children. In July, 1883, the directors employed a teacher of the colored children for a term of two months, and none since. Meanwhile there have been three terms of the white school for three months each. The directors, in their response, say that they conceived it to be their duty under the law to apportion the school fund per capita, and employ teachers for each school as the pro rata of each would suffice; and that they are willing to do the same still, but inasmuch as it has never been satisfactory to the colored population, and they have declined to accept a teacher on those terms, they have not employed one for the present year. The district has now, in the county treasury, to its credit, the sum of $147.57 left from the funds for payment of teacher’s wages for the past fiscal year.
An alternative mandamus was issued, which, upon answer and hearing, the court declined to make peremptory, and the petitioners now appeal here.
By law the school directors have the general charge of school affairs and of the educational interests of their districts. Mansf. Dig., Sec. 6213. It is their duty to make contracts with teachers, specifying the time for which they may be employed and monthly wages; and to visit the schools, encourage the pupils, and advise the teachers. Ib., 6214, 6218. Within the limits of their powers, and under the general guidance of the statute, they must, in many matters, be invested with a considerable range of discretion, and it is supposed in the small circle of the districts they will be selected with a view to their interest in the education of the children of themselves and their neighbors, and to their fitness and disposition to discharge their duties in a discreet, fair, and, as it were, paternal manner. The trust of selecting such is committed to the voters, who should have the interests of the children most at heart; and if the voters neglect their duty in this regard the courts can only regret it, and confine themselves to the enforcement of those duties which are made specific, and the restraint of such acts as may be unauthorized or forbidden. The only section of the statute bearing upon the point before us is 6212, Ib. It directs that the board of directors “shall make provision for establishing separate schools for white and colored children and youths, and shall adopt such other measures as they may judge expedient for carrying the free school system into effectual and uniform operation throughout the state, and providing as nearly as possible for the education of “every youth.” Here is a general purpose committed to their best discretion, to be carried out by such means as they may deem expedient in accordance with specific directions of law.
There is nothing in the section of a specifically mandatory nature. Its whole language imports a reliance upon their discretion in detail, with a view to a general purpose.
It is absolutely impossible, and especially so in the newer states, that any common school system should offer precisely the same advantages to every child. The greatest good to the greatest number is all that can be hoped. In deference to the sentiments of both races, the legislature has empowered the directors to make a distinction between the children of different races, for purposes of education, without indicating a preference to be extended to either. In some districts, as in this, the white children largely preponderate. In others the colored children are more numerous. A uniform system of using the fund pro rata according to numbers may not be the wisest that the directors could devise for each district, but it would certainly operate impartially as to race. We cannot say it is not, indeed, the best. About that there might be difference of opinion. For where there might be a great number of children of one race, either white or colored, and but two or three of the other, it would be a sad waste of limited educational means to make an equal division of them, and keep up schools for each at the same expense and for the same time. The education of scores of children, with all its diffusive benefits upon the coming generations, might be cut off by this Procrustian system, in order that two or three might enjoy fancied abstract rights. It is not plain that this is in accordance with the practical philanthropy of the age or with the state policy which fosters education with a view to an enlightened citizenship, widely diffused, as the surest bulwark of civil liberty. But if the legislature means that this system should prevail, it should make provisions to carry it into effect by mandatory and specific directions in the common school system. It would be easy to say that schools for the different races should, regardless of numbers, be maintained in each district for the 'same-time and at the same expense. If the legislature has not so ordered, and we cannot see that it has, then it transcends the judicial function to do so by writ of mandamus. This writ depends upon positive ministerial duties, prescribed by common or statute law.
Doubtless it comes within the discretion of the directors to divide the funds as sought. But mandamus does not lie to control discretion. There are other remedies to direct, restrain and control persons in fiduciary positions. The directors are not refusing to act. They have been proceeding according to their own views of duty, and are willing to go on, but petitioners refuse to accept any advantage under their proceedings.
Courts of equity have authority, by restraining orders and mandatory injunctions, to prevent the abuse or enforce the execution of trusts—if there be any such case presented.
The common law writ of mandamus should not be usea except to compel the performance of a specific, well defined legal duty, about which there can be no discretion, and performance of which is refused. The use of the writ in such cases as this destroys, and confuses, its distinctive nature.
If the duty sought to be enforced were definite, and could be specifically ordered, still it is a public duty, of public officers; and in such cases the settled rule, elsewhere, is that the writ cannot be impetrated at the suit of individuals háving an interest in common with other citizens that the duty be discharged, (Cooley's Blackstone, Note 2, p. 110, Vol. 3.)
This distinction, however, regards form, and would not of itself be insisted upon; as it seems in some cases to have been disregarded in former decisions, still, it is better that the old principles should be maintained.
If the duty be plain and palpable (and without it mandamus will not lie,) then the directors, if they have violated it, are liable, each, to a forfeiture of twenty-five dollars, which any elector may recover for the use of the school fund; or the prosecuting attorney for the district may take the matter in hand, and institute proceedings not only to bring offending officers to trial, but such as may be necessary to secure to the district, or to any person damaged by violation of the law, benefits and reliefs to which each or any of them' may be entitled. Mansf. Dig., Secs. 6209, 6257. The writ of mandamus I think neither necessary nor proper.