concurring specially.
I cannot concur in the view taken by my brother Whitman, of that section of the constitution upon which his conclusion is founded$ but it is very clear to my mind that the act in question, so far as it prohibits the admission of negroes to the public schools, is in direct conflict with Section 21 of the constitution, which declares that “in all' cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the state.”
One of the great fundamental principles underlying our government, as indeed it must be an indispensable element of all truly republican governments, is, that every citizen is equal before the law, being entitled to all the protection which it grants to life and property, and all the immunities and advantages which it may afford for culture or the amelioration of the condition of any individual or class. This has always been recognized as an essential principle of our form of government, not only by the theoretical writers upon the subject, and by all the distinguished statesmen of our country, but is the uniform language of the courts wherever the question is brought before them. Cicero tells us that the force of law consists in its being made for the whole community. Rousseau, that “ it is precisely because the force of things tends always to destroy equal*349ity that the force of legislation ought always to tend to maintain it.” Locke, speaking of the law-making power, says: “They are to govern by promulgated established laws — not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at the plow.” And this, says Cooley, “ may be justly said to have become a maxim in the law by which may be tested the authority and binding force of legislative enactments.” Constitutional Limitations, 392.
And again says this author: “ Equality of rights, privileges and capacities unquestionably should be the aim of the law; and if special privileges are granted, or special burdens or restrictions imposed in any case, it must be presumed the legislature designed to depart as little as possible from this fundamental maxim of government. The state, it is to be presumed, has no favors to bestow, and designs to inflict no arbitrary deprivation of rights. Special privileges are obnoxious, and discriminations against persons or classes are still more so; and; as a rule of construction, are always to be leaned against, as probably not contemplated or designed.”
“The rights of every individual,” say the court, in Wally’s Heirs v. Kennedy, “ must stand or fall by the same rule or law that governs every other member of the body politic or land, under similar circumstances; and every partial or private law which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were-it otherwise, odious individuals and corporations would he governed by one lavr, and the mass of the community and those who made the law, by another; whereas, the like general law, affecting the whole community equally, could not have been passed.” 2 Yerg. 554.
Again, in the case of Lewis v. Webb, 3 Greenleaf, 326, the court use this language: “ On principle, it can never be within the bounds of legitimate legislation to enact a special law or pass a resolve dispensing with the general law in a particular case, and granting a privilege and indulgence to one man by way of exemption from the operations and effect of such general law, leaving all other persons under its operation. Such a law is neither just nor reasonable in its consequences. It is our boast that we live under a government *350of law and not of men, but this can hardly be deemed a blessing unless those laws have for their immovable basis the great principles of constitutional equality.”
This is the great foundation principle of government, the abrogar ' tion of which must inevitably end in the ruin and destruction of our institutions. To maintain it as far as possible was undoubtedly the purpose of the section of the constitution above quoted. Why else require all laws, so far as practicable,, to be general and uniform throughout the state ? No other object is manifest except to give to all citizens the equal' advantage of the laws, to deprive the legislature as far as possible of the power of creating distinctions, and granting immunities and exemptions to one class of citizens over another. Nothing can be conceived more obnoxious or antagonistic to this principle than the law in question. It deprives an entire class of citizens of one of the most inestimable privileges of political organization; makes the most invidious discrimination against them, exacting a revenue from their property for the organization and support of public schools, and denying them their advantages; holding them amenable to the law, but withholding from them its highest privileges.
Thus it is manifest that the law, so far as it discriminates against a class of citizens, is at least opposed to the spirit of the constitutional clause referred to. But is it opposed to the letter ? To determine this it is necessary to ascertain whether the act is a general law, within the meaning of the constitution, and if not, then could a general law “ be made applicable.” Sedgwick, defining general -and special statutes, says: “ Public, or general statutes are, in England, those which relate to the kingdom at large. In this country they are those which relate to or bind all within the jurisdiction 'of the law-making power, limited, as that power may be, in its territorial operation or by constitutional restraints. Private or special statutes relate to certain individuals, or particular classes of men.” In Holland’s case, 4 Rep., we find a full discussion of this question. After stating the rule to be that an act is special which does not include the genus, but only the species or individuals, Coke says, in illustration of the rule: “ So, mystery or trade is a general word, trade of grocery is special, and this *351grocer, by name, is individuum; and, therefore, acts of parliament concerning mysteries or trades are general, but an act of parliament concerning the trade of grocer is a special act, as it it is said, 28 H. 8 Dyer, 27; because the trade of grocers contains under it but individua or singular persons, as this or that grocer by name ” * * “ But an act concerning all the nobility, or lords of the parliament, or all the bishops of England, or all corporations made by King Henry VI, are special and particular acts.” Again: “ So, observe what act to persons is general and what not. Now, know that although the matter is special, so that under it there are but individua, yet if it be general as to persons, thereof the judges shall take cognizance; but if the act concerns aliquod singulars, seu individuum, although it is general as to persons, yet the judges shall not take cognizance thereof.”
I am not aware that the correctness of the general rules stated by Lord Coke in this case has been questioned, although many cases have been found where they have been misapplied. Still, the general rule is universally recognized, that a law which does ' not embrace all persons in the same situations or conditions, is a special law. Whenever the courts, .maintain a law passed for the regulation of some local or special subject, it will be observed it is done upon the ground that, although local or special in some respects, it in some way affects the entire people, or from the very nature of the subject of legislation a general law would manifestly be inapplicable. I have been unable to find any case which has held an act to be general, which extended a privilege to one class of citizens to the exclusion of others in like circumstances. To make the law general it is not perhaps necessary, under the rule of Lord Coke, that it should include all persons within the jurisdiction of the law-making power, but Only that it embrace all who are in like condition, or who are embraced within a class designated by circumstances peculiar to itself. But what are the circumstances which are.generally recognized as creating such class ? Only age and sex, or such as naturally result from the social state, as the circumstance of trade, employment, profession, or the like. These' conditions are the natural fruits of the political compact, depending upon no act of legislation for their creation, and such are the class *352distinctions which are generally recognized by the law. In these cases, all the persons included in the class would, under Coke’s rule, constitute a genus, and therefore a law including the entire class would be general, according to the case put by him of a law respecting trades,lor the spirituality. But to say that any physical peculiarity, outside of that of sex, which is universally recognized, is sufficient to designate such class, is simply ridiculous. If so, the legislature might confer certain rights and privileges upon all persons possessing certain physical characteristics, to the exclusion of all others; as, for example, those haying hair of a certain color, or who might be of a certain stature, and so on, dividing the people into classes by trivial distinctions, and then adopt legislation as various as the classes, and as unequal and discriminating as it might choose. That the legislative department of this state has the authority to do so will not be claimed by any person familiar with our organic law. But the legislature has no more right to designate a class by the color of the skin, than by the color of the hair. Negroes, possessing all other qualifications, are, by the highest law of the land, citizens of this state. No law now in force, or which we are bound to recognize, places them in any different position, so far as citizenship is concerned, to any other class of citizens; (the constitutional provision of this state excluding them from the right of suffrage, being now admitted to be a dead letter, obliterated in fact, as if it had never existed) they follow the same pursuits, are engaged in the same employments, may be' members of the same professions, are in fact in no way marked or distinguished as a class, except by the one physical characteristic mentioned; but that aloné is not, by any law or decision that has come to my knowledge, sufficient to classify them so that a law can be called general which simply embraces them, to the exclusion of all others, or embraces all others, excluding them. I conclude the law is not general which does not embrace all persons similarly situated or conditioned, and that the mere matter of color does not place a negro in a condition or situation which,.in legal contemplation, is different from other citizens. It is no answer to say, that age and sex are no more distinctive characteristics than color,/ and therefore that the rule which authorizes a classification by reason of *353those characteristics will equally authorize a classification by color. Any classification whatever is obnoxious to the principle of equality which I have suggested, and is only, as Cooley says, permissible when unavoidable; hence classification should not be extended further than is absolutely necessary. Age and sex have always been marks of classification, both by the laws of this country and England, and are recognized by the constitution of this state, and laws passed including all persons of such classes have uniformly been held to be general. We cannot, therefore, disregard such decisions and the classifications of our own constitution, but we can refuse to make further classifications, which seem utterly unnecessary and unjust.
However, although it be not a general law, it becomes necessary still to determine whether the subject matter be such' as will admit of the passage of any but a special act. - It will be seen the constitution requires all laws to be general and uniform thoughout the state when such laws “ can be made applicable.” That this imposes the duty upon the legislature of adopting general laws where they can be made applicable, there is no question; the difficulty exists in determining what is to be understood by a law being applicable. The thing to which it is to be applicable is evidently the subject matter of legislation. It could not be said to be applicable to anything else. But what is to make a law applicable to the subject of legislation ? The general definition of this word applicable is suitable, proper, appropriate, adapted.
A general law, then, can only be applicable, suitable or appropriate, when the subject concerning which the law treats or which calls for the legislation is general in its character; that is, a subject in 'which the entire people or class legally recognized as such have an interest. If the subject of the law, independent of the law itself, be purely local or special, in which the people at large have no interest, then clearly a general law would be inapplicable and uncalled for; it would be legislating for all the people, when the situation or condition of only a few demanded it. But if the subject of the law be one in which, from its very nature, the whole people are interested, then the legislature is required to enact a general law. To illustrate: the subject of removing the county seat *354of any particular county from one locality to another is clearly a subject in which none but the people of the particular county are interested; or the case where a particular county desires to aid a railroad which is beneficial to itself alone ; in neither case are the people of the state at large interested in the subject; a general law, therefore, would be utterly inapplicable to the subject matter, that is, the subject not being general, a general law would not be called for, and if adopted, would be practically inoperative in most of the state, or perhaps, operate mischievously. But the case of taxation for the purpose of carrying on the state government, the manner in which claims shall be allowed or paid by the state, and kindred matters, are subjects, the very nature of which suggest general legislation, because all the people are directly interested therein. Many similar subjects might be mentioned, but these will suffice to illustrate the construction. This interpretation is that most obviously warranted by the language of the constitution, and I think will avoid the ridiculous result of forcing the legislature to enact general laws when the subject of legislation is purely and manifestly local or special on the one hand, and the equally unhappy result on the other of allowing the legislative body 'to be the final judge of whether a-law can be made applicable. So in effect, interpreting this injunction of the fundamental law to mean nothing but that general laws shall be .passed when the legislature may think proper. With the view which I take of this clause, if the subject matter respecting which a law is passed is clearly of general interest, then the judicial department has it in its power to force general legislation respecting it in conformity with the constitution; but if not clearly of such character, then in accordance with the rule universally adopted, the action of the legislature would not be interfered with.
Can there be any doubt but the subject of education, or the control and management of the public schools, and the question as to what children shall or shall not be admitted to the privileges afforded by them, are matters of general interest? No question can be suggested in which the entire people of the state are more generally concerned. It is confined to no class, race, or loijality. All who pay taxes at all contribute to the establishment and support *355of the schools, and as one of the most inestimable blessings of the social compact, all are interested in the enjoyment of the advantages which they afford. This is a subject, then, which most clearly calls for general legislation and none other. In that the law in question denies the privilege to one class of citizens to have their children educated at these schools, it is special, and is so far void. A law including all citizens of the state would, doubtless, be a general law, as it would, perhaps, embrace all for whom legislation can be demanded in this state. At least, citizenship constitutes a distinctive class recognized by the constitution of the state, and is an universal mark of classification in all governments. "However, it is sufficient in this case to say that whether a law which includes all citizens, or the children of all citizens, although expressly excluding those who are not so, may not be a general law is not decided.
As to the power of the trustees to classify scholars, putting some „ in one building or school and others in another, I fully agree with Judge Whitman. So long as the same advantages of education are given to all, such classification would not interfere with the constitutional principle upon which I place my conclusion.
I therefore concur in issuing the writ.