dissenting.
In the oral argument of this cause, it was not suggested that the statute in question was in conflict with any provision of our state constitution. The case of the relator was sought to be maintained on the ground that the statute was in violation of the fourteenth amendment to the constitution of the United States. I fully agree with my associates that this position of counsel is utterly untenable. The statute does not abridge any privilege or immunity of the applicant, as a citizen of the United States. The privilege of admission to the common schools of this state is no more inherent in or connected with the status of citizenship than is the elective franchise ; and to secure that against unfriendly state legislation, an additional amendment was required and was proposed. This privilege is not embraced within any meaning which has ever been attributed to the *356words “ life, liberty or property,” and the equal protection of the laws cannot well be denied to a right which never existed. •
I also quite agree with Chief Justice Lewis, that the eleventh article of our state constitution contains no provision in the slightest degree affecting the validity of this statute. The provision that the legislature may pass laws tending to secure a general attendance of children, was simply intended to affirm the power of the legislature to provide for compulsory education, in case the adoption of such a system should be deemed expedient. Such laws, elsewhere enacted, have been declared to be unconstitutional; and the evident and only object and scope of the provision was to set at rest the question of legislative power in this regard. It is argued that, because the school funds are directed to be apportioned in proportion to the numbers of all persons between certain ages, therefore all such persons must be admitted to the schools. This seems to me a most unwarrantable conclusion. If any principle of constitutional construction can be said to be well settled, it is that the courts cannot declare any limitation of the general powers con-, ferred upon the legislature, except those imposed by the fundamental law, either in express terms or by necessary implication. Had the intention been to compel the educatibn of all, it is but fair to the framers of the instrument we are construing to suppose that language would have been at their command to express that intention. But it is evident that no such idea was in their contemplation. What they were seeking for, they found — namely, a rule of apportionment which would most nearly, in its practical operation, approximate a division of the fund according to the educational necessities of each county. The argument, if it proves anything, proves too much — for, under this construction, no discrimination whatever could be made. The blind, the idiotic, the insane, the vicious and the diseased must all be admitted; and if “ may,” in the preceding section, is to read “ shall,” then the whole school law is void, because it fails to accord to the Shoshone infants their constitutional privilege of compulsory education.
- The cases cited from Massachusetts and Michigan are wide of the mark. In that from 5 Cushing, the question presented is thus stated by Chief Justice Shaw“ Conceding, therefore, in the full*357est manner, that colored persons, the descendants of Africans, are entitled by law in this commonwealth to equal rights, constitutional and political, civil and social, the question then arises whether the regulation in 'question, which provides separate schools for colored children, is a violation of any of these rights.” In answering this question, he says: “ It is urged that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinions and feelings of the community, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence; and we cannot say that their decision upon it is not founded on just grounds of reason and experience, and in the results of a discriminating and honest judgment. The increased distance to which the plaintiff was obliged to go to school from her father’s house, is not such, in our opinion, as to render the regulation in question unreasonable, still less illegal.” The case from 18 Mich, was decided in obedience to a statute expressly providing that all residents of any district should have an equal right tomttend any school therein.
The next question is, whether this is a special law. This term is used in the constitutions of many of our sister states, and their courts are generally, if not universally, in 'accord as to its meaning. In a late Iowa case, the court say: “A law applying to all railroad corporations is just as general and uniform as it would be if it applied to all common carriers. Very many laws, the constitutionality of which is not doubted, do hot operate alike upon all citizens of the state. These laws are general and uniform, not because theyl operate upon every person in the state, for they do not; but because! every person who is brought within the relations and circumstances' provided for is'affected by the law. They are general and uniform in their operation upon all persons in the like„situation; and the fact of them being general and uniform is not affected by the number of *358persons within their scope and operation. 20 Iowa, 343; vide 28 lb. 374; 27 Ind. 95; 14 Barb. 563.
In Maryland, it is held that all that is required to make a statute general, as distinguished from special, is that it shall apply to all persons within the territorial limits described in the act; that the object of the constitution, in prohibiting special as distinguished from local legislation, was to prevent the abuses that occurred in the great multiplicity of laws passed for particular and individual cases, and not to prevent legislation to meet the wants of communities less extensive in their territorial limits than the state. 29 Md. 521; vide 58 E. C. L. Rep. 620. According to these authorities, the statute in question is clearly a general law, and I do not understand Judge Lewis as dissenting from the principles they enunciate. But he contends for an additional element in the definition of a general law, the existence of which, it seems to me, may be conceded for the sake of the argument, without prejudice to the conclusion that this statute falls strictly within that definition. It is not denied that the legislature may classify persons by sex, age, occupation, residence, or the like, but it is said that it cannot make or adopt novel and arbitrary classifications; that all persons are to be deemed in the like situation, between whom there exists neither a substantial distinction, nor a distinction which has been customarily recognized, or which precedent has sanctioned as warranting this sort of discriminating legislation. It is__then_assumed that the only difference between a negro, child, and a--white_child lies in the color of the skin; and on this assumption it is argued that this statute introduces a classification entirely novel and arbitrary. The fallacy of the argument is patent. It singles out the m^trivial^atii,unimpQrtant..of..the .marks of;dis^tmction_betwj^n the two races. The other and vital ones — those the existence of whicfihaldnUiñduced the legislature to enact this section of the statute— are ignored. I find them well stated by an eminent judge, in an opinion written about the time this statute was passed, and which affirms the right of a public carrier to separate his passengers by the characteristic of color. He says: “ The right to separate being clear in proper cases, and it being the subject of sound regulation, the question remaining to be considered is, *359whether there is such a difference between the white and black, races within 'this state, resulting from nature, law and custom, as makes it a reasonable ground of separation. The. question is one of difference, not of superiority .or inferiority. Why the Creator made one black and the other white, we know not; but the fact is apparent, and the races distinct, each producing its own kind; and following the peculiar law of its constitution. Conceding equality, with natures as perfect and rights as sacred, yet God has made them dissimilar; with those natural instincts and feelings which fie always imparts to His creatures when He intends that they shall not overstep the natural boundaries He has assigned to them. The natural law which forbids their intermarriage, and that social amalgamation which leads to a corruption of races, is as clearly divine as that which imparted to them different natures. The tendency of intimate social intermixture is to amalgamation, contrary to the law of races. The separation of the white and black races upon the surface of the globe is a fact equally apparent. Why this is so, it is not necessary to speculate ; but the fact of a distribution of men by race and color is as visible in the providential arrangement of the earth as that of heat and cold. The natural separation of the races is, therefore, an undeniable fact, and all social organizations which lead to their amalgamation are repugnant to the law of nature. Prom social amalgamation it is but a step to illicit intercourse, and but another to intermarriage. The right of these widely separated races to be free from social contact is as clear as to be free from intermarriage. * * * Law and cus-| tom having sanctioned a separation of races, it is not the province' of the judiciary to legislate it away. We cannot say there was no difference in fact, when the law and the voice of the people have said there was. The laws of the state are found in its constitution, statutes, institutions and general customs. It is to these sources judges must resort to discover them. If they abandon these guides they pronounce their own opinions, not the laws of those whose officers they are. Following these guides, we are compelled to declare that, at the time of the alleged injury, there was that natural, legal and customary difference between the white and black races in this state which made their separation as passengers in a public *360conveyance the subject of a sound regulation to secure order, promote comfort, preserve the peace and maintain the rights of both carriers and passengers.” 55 Penn. 213.
I understand Judge Lewis to admit that the legislature can exclude all females; such a statute would not be special, according to his definition. Yet it certainly cannot be maintained that, so far as the right to an education is 'concerned, there is any more substan^ tial difference between a white' boy and a white girl, than between a white and a negro child. It is said that the one is a customary and the other a novel classification. But is this so ? At the time this statute was enacted, and when our constitution was adopted, the negro was not a voter; he could not hold office ; he could not testify in a civil case where a white was a party ; and the intermarriage of the two races was unlawful, and the solemnization of such a marriage a misdemeanor. In the language of Judge Agnew: “ Under the constitution and the laws, the races stood in a separate relation to each other. The same difference is found in the institutions and customs of the state. There had been no inter-mixture, gocially,.religiously, civilly,_.pr politically.”
So far from being a novel classification, it was not only known to and recognised by our own constitution, statutes and customs, but was almost universally made the basis of legislation throughout the United States. In Indiana, for instance, under a similar constitutional inhibition of special legislation, negroes were long prohibited from testifying, by a statute the constitutionality of which was never assailed. It is admitted that, we cannot disregard the classifications of our own constitution, and it cannot be denied that there is no one of them more prominent than that which gives to the White the privilege of voting and holding office, and denies the same privilege to the negro. Hence it inevitably follows that, when this statute was approved, it was a valid and constitutional law. How, then, has it become void ? Not, it is conceded, because it is now, any more than it was then, repugnant to any provision of the laws or constitution of the United States — not by any amendment of our own. By what other process a statute, constitutional when enacted,can have becopae unconstitutional, I cannot imagine. Suppose a sixteenth amendment should be adopted, declaring that no *361state shall deny to females the right of suffrage: would that render all our statutes which apply to females alone, unconstitutional ? No one would contend for such a proposition; yet the argument would be the same as that here used in behalf of the negro. It could be then urged with equal force, that females are citizens ; stand, as to citizenship, in the same position as any other class of citizens; that the word “ male” is obliterated from our constitution as if it had never existed; that they follow the same pursuits, may be members of the same professions, and are, in fact, no way marked or distinguished as a class, except by physical characteristics, &c. The argument, as applied either to the case before us or the one supposed, virtually asserts the novel doctrine, that a statute once valid can be declared invalid, by the application of the maxim, “ cessante ratione legis, cessat et ipsa lex.” But the reason has not ceased.. The distinguishing characteristics of the races remain the same.. Nor has the word “ white” been obliterated from our constitution. It remains, and with it is retained the ineligibility to office of all save qualified electors under that constitution. This “ classification., of our own constitution” is wholly without the scope of any.of the amendments relied upon.
It seems to have been assumed throughout, that the statute excludes negroes from the public schools; but if the alternative be, either to declare the section void, or to construe it as positively commanding the board of trustees to establish a separate school for the education of negroes, the latter course should be adopted. The rules on this subject are thus expressed by the text writers: “ As a conflict between the statute and constitution is not to be implied, it would seem to follow,-where the meaning of the constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect. This is only saying, in another form of words, that the court must construe the statute in accordance with the legislative intent; since it is always to be presumed the legislature designed the statute to take effect, and not to be a nullity. Where a statute directs the doing of a thing for the sake of justice or the public good, the word “may” is the same as the word “shall.” The words shall or may are to be construed as imperative in all cases where a public body or officers have been *362clothed by statute with power to do an act which concern's the public interest or the rights of third persons; and, in such cases, the execution of the power or the doing of the thing required may be insisted on as a duty, though the phraseology of the statute be permissive merely, and not peremptory.” The section in question, as originally enacted in March, 1865, provided that “ the board may establish a separate school for the education of negroes, if deemed advisable by them.” As amended, and as it now stands, it simply provides that the board may establish such separate school. This omission, ex industria, of the language expressly leaving the matter to the discretion of the board, is significant; and, though not in itself conclusive, so strengthens the presumptions of legislative intent suggested by the rules of construction above quoted, as to demonstrate the possibility of construing the statute as imperative. Hence it would follow, that the duty enjoined upon the trustees is to establish a separate school, — not to admit the applicant to that already established ; and as the writ-can only issue to compel the performance of the duty enjoined, and not to compel the doing of what the law prohibits, it results that, by awarding the writ, this court, to all intents, decides that the legislature is deprived, not only of the power to exclude negroes from the common schools, but also of the power to provide for their education in separate schools; and is compelled, either to give the sanction of law to the intermixture of the two races in the same school, or to deprive both races of all educational advantages whatever: a conclusion which, it seems to me, can only be arrived at by an equal disregard of principle and authority.
I think the mandamus should be denied.