1. mandamus: school board, In view of the principle of equal rights to all, upon which our government is founded, it would seem necessary, in order to justify a denial of such equality of right to any one, that some express sovereign authority for such denial should be shown.
But it is claimed, that, since the board of directors are authorized and empowered to have as many schools in their district township as they may deem proper, and are charged with a discretion in their control and management, they may, therefore, establish schools for colored children, and require such to attend them, or none. And, in this particular case, the fact, that public sentiment is opposed to the intermingling of white and colored children in the same schools, is presented as a justification for the exercise of the discretion in the *270establishing and maintaining of a separate school for the colored children. Whether such a public sentiment would amount to a justification or not, it is not necessary to now inquire ; for, if the board of directors have a discretion in that particular matter, their discretion cannot be controlled by mandamus, whether they have exercised it wisely or unwisely (Rev. § 3763).
To determine whether the right claimed by plaintiff is a clear and absolute legal right, or one dependent upon the discretion of the board of directors, we must look to the statute. And we can the more unmistakably construe the statute when we examine it in the light of the legislative history in relation to the same subject-matter.
2. Schools: re¿Tdiac?¿-a’ u°n. Our first State Constitution was adopted in 1846. At the first session of the general assembly of the State, a *aW 011 subje°t of Common schools WaS passed, in which it was enacted that the “school shall be open and free alike to all white persons in the district between the ages of five and twenty-one years.” * * * Laws of 1846, ch. 99, § 6.
In 1848, at the second regular session of the general assembly, an act was passed to “establish a system of common schools,” and by which all other acts were repealed; by this act it was provided that the secretary of the district should “ take and keep on record a list of the names of all the white persons in the distinct between the ages of five and twenty-one years, and shall deliver a copy of the same to the principal teacher,” etc. Laws of 1848, ch. 80, § 51.
By the Code of 1851, the provisions of the last mentioned law were re-enacted. Code of 1851, § 1127. And it was also provided by the Code of 1851, that “ all real and personal property of blacks and mulattos in this State shall be exempt from taxation for school purposes.” § 1160.
*271By the new Constitution, which was adopted in 1857, the educational interests of the State, including common schools, were placed under the management. of a board of education. The general assembly was, however, clothed with the. power to abolish or reorganize said board of education, after the year 1863. This power was exercised and the board of education was abolished by act approved March 19, 1864, Laws of 1864, ch. 52, § 1. It was also provided by the new Constitution, article 9. “ § 12. The board of education shall provide for the education of all the youths of the State, through a system of common schools.” * * *
By an act of the seventh general assembly, entitled “ An act for the public instruction of the State of Iowa,” approved March 12, 1858, it was provided that the district board of directors “ shall provide for the education of the colored youths in separate schools, except in cases where, by the unanimous consent of the persons sending to the school in the sub-district, they may be permitted to attend with the white youths.” Laws of 1858, ch. 52, § 30, subdivision 4. This act was, however, declared unconstitutional in December, 1858, by the Supreme Court, because the power to provide a system of education was given by the Constitution to the board of. education, and could not be primarily exercised by the general assembly. The District, etc., v. The City of Dubuque, 7 Iowa, 262.
Afterward, the board of education passed an act to provide a system of common schools, etc., which was amended by the general assembly and took effect March 1, 1860. By this act it was provided, that “in each sub-district there shall be taught one or more schools for the instruction of youth between the ages of five and twenty-one years.” * * * No exemption from taxation of the property of colored persons is made by this act. Rev. of 1860, § 2023 et seq. By section three of the act, *272it is provided, that “ scholars residing in one district may attend school in another,” etc.; and by section thirty-one it is made the duty of the director in each sub-district to make and keep on record a list of the names of all heads of families in the sub-district, and the number of children in each family between the ages of five and twenty-one years, distinguishing males from females, and to report the same, etc.
By an act to amend and consolidate the school laws approved April 8, 1862, it is provided, that “ in each sub-district there shall be taught one or more schools for the instruction of youth between the ages of five and twenty-one years.” * * * Laws of 1862, ch. 172, § 12. Independent districts are governed by the same laws as district townships. Section 89.
By an amendment of section twelve of the last named act, the amendment being approved April 3, 1866, the same language as to “ the instruction of youth between the ages of five and twenty-one years,” is retained and re-enacted. Laws of 1866, ch. 143, § 3. And it may be remarked, in the conclusion of this summary of legislation, that, since the act of March 12, 1858, there has been no mention of, or discrimination in regard to, color, made.
From the foregoing synopsis of the legislation of the State, it will be seen that there have been three distinct phases of legislative sentiment, or sovereign will, upon the subject under discussion: First, the total exclusion of colored children from our common schools. This dark phase is somewhat illumined by the justice which manifested itself in the exemption of the property of colored persons from taxation for school purposes. Second, the allowance of uncertain, and in practice (owing to the small number of colored children in any school-district) very limited and inferior common school privileges, dependent upon the unanimous consent of the persons *273sending to tbe school. Third, the allowance of equal common school privileges to all.
The rights of this plaintiff must, of course, be measured by, and determined under, the law now in force. That law does not, in terms, deny to the board of school directors the right to exercise their discretion in relation to establishing and maintaining separate schools for colored children. But it does, in effect, deny such discretion. The legislature, in its prior enactments, have denied any discretion to the board of directors, by declaring its sovereign will in relation to the rights of colored children. This declaration of the sovereign will, of course, excluded the exercise of any discretion in relation to the same matter, by the inferior authority — the board of directors. The legislature, by enacting, as it did in 1846 et seg, that the common “ schools ” shall be open and free alike to all white children, as effectually excluded colored children, as if it had expressly enacted that they should be excluded — and this, under the rule of construction that expressio unius exelusio alteri/us. Under these laws, it is clear that ■ the board of directors had no discretion intrusted to them to admit colored children into the common schools or to establish separate schools for them.
When the legislature enacted, as it did in 1858, that colored children should be admitted to the common schools only upon the “ unanimous consent of the persons sending to the school,” and, in case such consent was not given, then the education of colored youth should be provided for in separate schools, all discretion in relation to that matter was effectually denied to the board of school directors. And it would not have been competent for the board of directors, in their discretion, to have admitted colored children to the common schools, *274without the unanimous consent of the persons sending to the school.
Now, under our Constitution, which declares that provision shall be made “ for the education of all the youths of the State through a system of common schools,” which constitutional declaration has been effectuated by enactments providing for the “instruction of youth between the ages of five and twenty-one years,” without regard to color or nationality, is it not equally clear that all discretion is denied to the board of school directors as to what youths shall be admitted ? It seems to us that the proposition is too clear to admit of question.^
To re-state the whole matter succinctly, it is this: If the legislature have, by first denying admission of colored children to common schools, and then by admitting them only upon unanimous consent, denied all discretion to the school board as to the admission of colored children, such discretion is equally denied when the legislature have declared, pursuant to a constitutional requirement, that all the youths of the-State shall be admitted to the common schools.
We conclude, therefore, that the law makes no distinction whatever, as to the right of children between the ages of five and twenty-one years, to attend the common schools, and that there is no discretion left with, or given to, the board of school directors, to make any distinction .in regard to children within the specified ages.
But there is a claim made in the answer, that the number of children within the independent school-district, of which the defendants are directors, require the establishing and maintaining of several schools therein, and that there are several schools maintained by them to meet the wants of the district. And upon this state of case it is claimed, that the board of directors may exercise a discretion as to which of tho several schools any youth therein *275shall attend, and that, under this right of discretion, the board of directors were justified in requiring the plaintiff to attend the colored school.
That the board of directors is clothed with certain discretionary powers as to the establishment, maintenance and management of schools within its district cannot be denied. Doubtless the board may, in its discretion, fix the boundaries within which children must reside,, in order to be entitled to admission to a certain school; or may fix the grade of each school, and require certain qualifications, or proficiency in studies, or the like, before any pupil shall be entitled to admission therein.
But this discretion is limited by the line which fixes the equality of right in all the youths between the ages of five and twenty-one years. No discretion which disturbs that equality can be exercised; for the exercise of such a discretion would be a violation of the law, which expressly gives the same rights to all the youths. Therefore, it is not competent for the board of directors to require the children of Irish parents to attend one school, and the children of German parents another; the children of catholic parents to attend one school, and the children of protestant parents another. And if it should so happen, that there be one or more poorly clad or ragged children in the district, and public sentiment was opposed to the intermingling of such with the well dressed youths of the district, in the same school, it would not be competent for the board of directors, in their discretion, to pander to such false public sentiment, and require the poorly clothed children to attend a separate school.
The term “ colored race ” is but another designation, and in this country but a synonym for African. Now, it is very clear, that, if the board of directors are clothed with a discretion to exclude African children from our common schools, and require them to attend (if at all) a *276school composed wholly of children of that nationality, they would have the same power and right to exclude German children from our common schools, require them to attend (if at all) a school composed wholly of children of. that nationality, and so of Irish, French, English and other nationalities, which together constitute the American, and ,which'it is the tendency of our institutions and policy of the government to organize into one harmonious people, with a common country and stimulated 'with the common purpose to perpetuafe and spread our free' institutions for the development, elevation and happiness of mamjomd.
If the words “ colored race ” be stricken from the answer "and.the word “ English,” “ Irish,” or “ German,” inserted in their place, it would present precisely the s&me principle for our determination as is now presented. It would only apply to a different racé. Our statute does not, either in letter or in spirit, recognize or justify any such distinction or limitations of right or privilege on account of nationality. For the courts to sustain a board of school directors or other subordinate board or officer in limiting the rights and privileges of persons by reason of their nationality, would be to sanction a plain violation of the spirit of our laws not only, but would tend to perpetuate the national differences of our people and stimulate a constant strife, if not a war of races.
Our statute has expressed the sovereign will, that all the youths of the State between the ages of five and twenty-one years shall be entitled to the privileges and benefits of our common schools, and it is not competent for the board of directors to resist that sovereign will and declare, that, since “ public sentiment in their district is opposed to the intermingling of the white and colored children in the same school,” they will deny equal privileges to some of the youths.
*277In other words, all the youths are equal before the law, and there is no discretion vested in the board of directors or elsewhere, to interfere with or disturb that equality. The board of directors may exercise a uniform discretion equally operative upon all, as to the residence, or qualifications, or freedom from contagious disease, or the like, of children, to entitle them to admission to each particular school; but the board cannot, in their discretion, or otherwise, deny a youth admission to any particular school because of his or her nationality, religion, clothing or the like. ft'
Therefore, since it appears that the plaintiff iijól/the proper age, resides within the boundary and possesses the qualifications requisite for admission to Gij’aTnmar School No. 2, “ and has ” (as stated in her petition) no wise forfeited her right ” to admission there, it that the defendants wrongfully refused her admission.^ It was the clear legal duty of the board of directors, resulting from their said office, to admit the plaintiff to said school, and to equal privileges with the other pupils therein. The District Court did not err in making the mandamus peremptory.
Affirmed.