dissenting. — The language of the statute, that, when a discretion is left to an inferior tribunal, the writ of mandamus can only compel it to act, and that it cannot control this discretion (Rev. § 2763), is but the recognition of the rule as it stood at common law. The duty to be performed must be imperative, not discretionary. Rex v. Hughes, 3 A. & E. 429; Same v. Commissioner, 4 id. 297; Tapping on Mand. 13 and 14, and cases cited; United States v. Dubuque Co., Mor. 31; Chance v. Temple, 4 Iowa, 179. So, also, the same cases teach, that the writ will not issue when the discretion has been *278exercised, and no ground appears that it has been done wrongfully. Nor will it, when the discretion has been exercised in accordance with reasonable rules and practice. Rex v. Flocknold Inclosure, 2 Chitty, 251; Rex v. Lancashire, 7 B. & C. 691; Tapping on Mand. 14.
In this case it fairly appears from the answer, that the child Susan resided with her father in the particular subdivision of the district which entitled her to attend this grammar school, and that the directors determined that she should attend the colored school, outside this subdivision. I also gather from the answer, that, at the tinie she applied to be admitted to this school, there was no grammar department organized in the school to which they determined to send her, but that they proposed, before suit brought, to create the same for the instruction of this scholar, and to put in charge thereof a competent teacher.
Now, if the foregoing opinion had placed the affirmance of the case upon the ground that it was the right of the scholar, if she, or her parent for her, so elected, to attend the school provided for scholars in the subdivision where she resided, and that it was the duty of the board to admit her to the same, I should have been content. So too, I should have no hesitation in holding, that, if the scholar was so far advanced , that she could not receive proper instruction in the colored school, and such instruction was not furnished her there, she could demand admission to the school from which she was excluded. And I incline to the belief that the duty to thus admit could not be excused or avoided by a mere-offer to organize the department, as stated in the answer. If it was not organized, she, at least, had a right to instruction in the other school, until there was an actual present ability to instruct in the other. For the performance of a duty cannot be avoided, by a mere offer to do *279something which may or may not be performed, where, pending such proposed performance, the rights of the petitioner are absolute.
Upon either of these grounds, I repeat, I could have concurred in the opinion affirming this judgment. And having said this much, I have only to add, that, while the Constitution provides for the education of all the youths of the State, by a system of common schools, and while, without regard to color, the legislature has provided, in obedience to the Constitution, for this instruction, I am not prepared to admit that the school directors have no discretion in arranging the schools, nor that they cannot direct where the children shall attend school, provided, of course, they are kept within their proper districts, and have furnished to them the necessary and proper instruction. I concede that the law makes no distinction as to the rights of children between the ages of five and twenty-one. All have a right to attend the common schools. And this is what the Constitution intended to secure. This right, the directors in this case recognized. The rule adopted by them was reasonable, and I cannot admit that the refusal to admit this scholar into this particular school was so wrongful as that the courts should interfere by mandamus. If she was allowed to attend a school in the proper district, having the suitable instruction furnished to others, then I know of no principle upon which she can complain. It is not for the child nor the parent to control in these matters, but, in my opinion, the very integrity of our deservedly popular school system depends upon leaving such questions to the board.
There is no absolute legal right in a colored child to attend a white school rather than one made up of children of African descent; just as there is no such right in a white child to attend a colored' school. The school offi*280cers, in my opinion, are the appropriate judges in these matters. And, when they, to the extent of the means at their command, furnish to all alike the instruction contemplated by the Constitution and law, I would not compel them to admit the scholars into one rather than another school of the district.
If, in their opinion, the best interests of the schools require that particular families should be kept together, or should be separated; if they believe that scholars will more rapidly advance, and the harmony and welfare of the schools be promoted by having this child under this instruction, and that one under another; if, because of the actual condition of public sentiment for the time being, they deem it more advisable, and, in the exercise of a sound discretion, direct that colored children shall be taught by themselves; or, on the other hand, should direct that all should attend the same school, — I do not believe the courts should interfere. If this rule' excludes the child from the benefit of the common schools within his or her district, just as fully, just as completely as all others, then there would be a violation of an imperative duty. The matter would no longer rest in discretion, and the writ might issue. As I understand the record, so far as relates to the point now under consideration, and the one for the most part made by counsel, and that which they desired should be decided, I do not believe there was such a failure to perform an imperative legal duty by the board, as to justify our interference. The principle of equal rights to all does not demand that all the children of the district should be taught in the same building, nor by the same teacher; nor that a colored child shall be transferred from one school to another, nor that this should be done for a white child. The true inquiry is: Have all equal school privileges ? And, if so, being all children alike, and alike equal before the law, but no *281more, this equality is preserved by adopting the same rule as to all. This equality was in no sense disturbed, under tbe rule adopted by this board. So holding, I cannot concur in affirming the judgment below upon the point ruled in the foregoing opinion.