The opinion of the court was delivered by
Benson, J.:The statute relating to schools in cities of the first class contains this provision:
“The board of education shall have power to elect their own officers, make all necessary rules for the government of the schools of said city under its charge and control, and of the said board, subject to the provisions of this act and the laws of this state; to organize and maintain separate schools for the education of white and colored children, except in the high school, where no discrimination shall be made on account of color; to exercise the sole control over the public schools and school property of said city; and shall have the power to establish a high school, and maintain the same in whole or in part by demanding, collecting and receiving a tuition fee for and from each and every scholar or pupil attending such high school.” (Gen. Stat. 1901, § 6290.)
The plaintiff states that the question presented is whether the defendant, by locating and constructing *206the school building for colored children in the dangerous place described in the alternative writ, is maintaining there a lawful school within the meaning of the law, or whether its construction in such a perilous location is such an abuse of discretion as will sustain this action. He concedes that the board has the right under the statute to establish separate schools for white and colored children, provided they are given equal educational facilities. It is also conceded that this court can hot control the just discretion given to the board to locate and build schoolhouses and maintain schools as provided by law. No malicious motives are charged, and no fraud is implied, unless it may be inferred from the location of the schoolhouse in a place so manifestly perilous as to deprive colored children of their right to attend school. Upon the motion to quash the facts stated in the alternative writ must be taken as true, and the single question is thus presented whether the location of the school building is such that as a practical matter the plaintiff’s children can not attend school there. It is not a matter of taste or convenience (Reynolds v. Board of Education, 66 Kan. 672, 72 Pac. 274), or freedom from necessary danger; but the question is whether the perils that must be encountered are so obvious and so great that in the exercise of reasonable prudence their parents should not permit them to incur the hazard necessarily and unavoidably involved in attending the school.
The schoolhouse was located after the tracks referred to had been laid, and, it is fair to suppose, were being used. The extent of the area included in the school grounds thus surrounded by these tracks, or the number of pupils attending the school, does not appear. It may be that a sufficient school population lives, within such boundaries and in places reasonably accessible to make the erection of a schoolhouse there proper for their accommodation, and this may be, and it probably should be presumed is, the reason why this particular *207site was chosen; but it does not follow that children living in other parts of the city, who would be compelled to cross the numerous tracks which the plaintiff’s children must cross to reach the school, should be compelled to do so or lose all educational privileges. The plaintiff is called upon to choose between a violation of the law and the risk, of fine and imprisonment by re-' fusing to send his children to school, as provided in the act compelling such attendance (Laws, 1903, ch. 423), and the peril to their lives in crossing twice a day sixteen railroad tracks, upon which cars are constantly being switched and trains made up and operated, with the incidental sounds of whistles and bells and all the noise and excitement incident to such a situation. It would seem that ordinary prudence, as well as just parental anxiety, would impel the father and mother to refrain from exposing their children to such hazards.
That boards of education, and not the court, must locate schools, untrammelled by judicial interference in the exercise of the discretion wisely committed to them by the law, is a principle to which we give full and hearty • approval; but the situation here, according to the recitals of this writ, is so beset with impending dangers that we can not say that the attendance of these children at this school should be compelled. We are constrained to say that the order of the board requiring them to attend this school, and no other, was, upon the facts stated in this writ, an abuse of discretion. As that term is ordinarily used it implies not merely an error in judgment, but perversity of will, passion, or moral delinquency ( And. Law Diet. p. 363) ; but the term is applied here to characterize the denial of the rights of citizens clearly given by the constitution and the laws, which a just discretion will not permit. „ .
“It is really a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” .(Murray v. Buell and others, 74 Wis. 14, 19, 41 N. W. 1010.)
*208Having power to maintain separate schools in cities of the first .class, the duty rests upon boards of education therein to give equal educational facilities to both white and colored children in such schools. This requirement must have a practical interpretation, so that it may be reasonably applied to varying circumstances. Its scope and purposes are stated in Reynolds v. Board of Education, 66 Kan. 672, 72 Pac. 274, and need not be repeated here. But where the location of a school is such as substantially to deprive some of the children of the district of any educational facilities it is manifest that this equality is not maintained, and the refusal to furnish such privileges, where it is practicable to do so, is an abuse of discretion fo*r which the courts will afford a remedy.
Circumstances may exist where the absence of such privileges is practically unavoidable. It is possible that a family or several families may be located so that no school is accessible, but the facts here stated do not present such an emergency. If it exists, or if for reasons not disclosed in the alternative writ it is practicable for these children to attend the school provided by the board, such facts, with any other matter of defense, may be pleaded. In deciding this motion we only hold that upon the facts stated the plaintiff is entitled to relief by mandamus—not necessarily, however, to admit his children to Lincoln school, as requested, but. to some school Where they will have the privileges given to them by the law.
The motion to quash the alternative writ is denied.