People ex rel. Bibb v. Mayor of Alton

Mr. Justice Carter delivered the opinion of the court: In this an original proceeding in this court for a writ of mandamus we certified to the circuit court of Madison county for trial certain issues of fact. The proceedings in that court, including the verdict of the jury, have been certified to this court. The verdict was in favor of the respondents, and if no error was committed by the court below and the verdict is sustained by the evidence the writ should be denied. It is insisted, however, by counsel for the petitioner, and it clearly appears to us from the record before us, that the court below erred in excluding evidence offered by the petitioner on the trial, and that the verdict should be set aside and the issues submitted to another jury. The evidence, so far as the jury were permitted to hear it, tended to prove the discrimination alleged in the petition. The evidence shows that the relator’s children had previously attended the Washington school, which was located within four blocks of then-residence and was the most convenient of access to them. The Love joy school was upwards of a mile away, and access to it was otherwise inconvenient to them. The Washington school had four teachers and eight grades; the Love joy school two teachers and eight grades, and in each was a fourth grade,—a grade to which the relator’s children were entitled to admission upon their certificates which had been issued to them. This grade in neither school was full, and it seems there was room in either for these children. It was not claimed by the respondents on the trial that there was any reason for their exclusion from the school or schools in their neighborhood and which were most convenient for them to attend, except that the assignments of children to the different schools were made to prevent the overcrowding of some of the schools and insufficient attendance at others, but it was neither urged nor proved that the Washington school was or would have been, with these children as pupils, overcrowded, or the number of scholars at the Love joy school of this grade insufficient or disproportionate, or, if so, that there was any reason, other than that of race distinctions, for assigning them to the Love joy school. True, the burden was on the petitioner to prove the affirmative of the issues, and the respondents were not called upon, in the first instance, to prove any reason for the exclusion of the children in question from the Washington school. Notwithstanding their assignment to the Love joy school they presented themselves, upon the opening of the schools, at the Washington school, and, with other colored children who did likewise, were by the teacher placed separate and apart from the white children and no lessons were assigned to them nor were they permitted to recite. A few days later the chief of police of the city, acting, as he testified, partly under the order of the mayor and partly under the order of the board of education, stationed policemen at the doors of the Washington school to prevent, and who did prevent, relator’s children and others from entering that school. One of these policemen testified that he was ordered by his superior to keep the colored children out of the schools; others testified that they went there under orders to prevent disturbances of the peace. On this state of the proof the petitioner, by proper questions put to witnesses on the stand and by proper offers of proof, sought to prove that all colored children were excluded, in the manner and by the methods stated, from the Washington school and its privileges and required to attend the Love joy or Douglas school, where only colored teachers were employed and colored children attended, while white children were not so excluded. The court refused to admit the evidence but confined the proof to the exclusion of the two children of the relator. Substantially the same question, in different forms, was presented for the ruling of the court, whether any colored children were allowed to attend “white schools,” so-called, or any white children attended the “colored schools,” and the question was decided against the petitioner and the evidence excluded There was manifest error in these rulings of the court. It is obvious that it would be exceedingly difficult for the petitioner to prove that the two children of the relator were denied admission to the school which they had previously attended, and that they were assigned to another of the same grade in a different part of the city remote from their residence, solely on account of race distinctions, without proof of the fact, if it was a fact, that the same action was taken with reference to other children of the same race. There were many children of African descent of school age in Alton, estimated by the respondents themselves at one hundred and forty-five,and we can not suppose that the respondents would select two such children and deny to them equal school privileges with white children solely on account of their color, and allow all other colored children in the city to attend the schools with white children. It would, of course, be assumed by the jury that the respondents acted from some intelligent motive, and in the absence of any proof that the same rule of exclusion and assignment was applied to other children of the same race, it would be difficult, if not practically impossible, to prove, and for the jury to find, even if true, that racial distinctions had anything to do with the action complained of. If the People had .been permitted to prove, in accordance with the offer made on the trial, that there were a large number of children of school age of African descent in the city and school district, living in different parts of it, and that they were by the act of the respondents excluded from the schools most convenient for them and which were attended by white children, and were assigned, without regard to residence or convenience, to the Lovejoy and Douglas schools, where no white children attended, and that the relator’s said children were included in the same general action of the respondents, and that there was no other reasonable ground specially applicable to the relator’s children for their exclusion, the case would have presented a very different aspect to the jury; and, as before said, without proof upon the larger question which was within the allegations of the petition, proof of the illegal discrimination alleged as to the relator’s children was practically impossible. The effect of the ruling of the court was to prevent the proper determinatipn by the jury of the principal question of fact sent down by this court for ascertainment. The witness Finke, the president of the board of education, testified that he did not know the Bibb children, and did not know whether they went to the Washington school or not. He was then asked whether there were any colored children going to that school, and the court refused to allow him to answer. He was then asked whether there were any colored children in attendance at any of the schools in the city attended by white children, and the respondents’ objection to this question was also sustained. But it is unnecessary to specify particular questions among so many put to different witnesses, as the same rulings were made as to all, and by these erroneous rulings the issue; was practically decided against the petitioner before it was submitted to the jury. We are also of the opinion that this witness should have been permitted to answer what instructions he gave to the superintendent of schools with reference to the admission of colored children to the several;schools, and under what authority such instructions, if any, were given. The only record of the board of education in evidence was this resolution: “Whereas, the crowded condition of our schools renders it necessary to transfer pupils from the different school houses to other places or school houses; be it “Resolved, That the superintendent of our schools be and is hereby instructed to send school children to such school houses as the committee on teachers may direct him.” It is not, of course, denied that the transfer of pupils for reasons specified in this resolution, or for other legal reasons, was within the power and discretion of the board. A wide latitude for the exercise of discretion in such matters is necessarily left to the school authorities, but they have no discretion whatever to admit, or refuse to admit, children to certain schools for reasons based upon color or differences in race of the pupils. Nor is it claimed by the respondents that any such power or discretion exists, but they insisted on the trial, and their position was in part sustained by the trial court, that the petitioner must produce record evidence of the acts complained of to maintain the issues against the respondents. In other cases where acts of illegal discrimination against school children of African descent have been before this court for review such discrimination was shown by the records of the school authorities. Thus, in People ex rel. v. Board of Education, 127 Ill. 613, and People ex rel. v. Board of Education, 101 id. 308, rules and resolutions passed by the board showed the illegal discrimination. But neither the People nor those injured by the illegal discrimination are remediless merely because officers acting as a body make no record of their illegal acts. If that were the law, then all that would be necessary to make one illegal act enforcible and effectual would be to perform another or omit to perform some other legal duty. The petitioner does not insist that either the ordinance or the rule of the board is, or that both together are, upon their face invalid, as providing in terms for the discrimination complained of, or that any record was made of the alleged illegal discrimination, but that the mayor and members of the council, intending and contriving to exclude children of African descent from equal privileges with white children, passed the ordinance in question to enable them to do so, and then, by and throug'h the board of education, or its members and the police force, carried their purposes into execution without making any official record of their alleged illeg'al action. If this contention were true, the alleged illegal discrimination would not, of course, appear from any record, and the petitioner would have the right to prove such illegal acts by any competent evidence. This phase of the case becomes important for consideration in view of the exclusion by the trial court of testimony offered by the petitioner as to what was said by the respondent Brueggeman, who was at the time the mayor of the city of Alton, respecting his acts and purposes in excluding children of African descent from the white schools. By questions proposed to several witnesses on the stand, .counsel for the petitioner sought to elicit this evidence, but the objections of counsel for the respondents were sustained by the court and the witnesses were not permitted to answer. In producing their proof on this subject, counsel for the petitioner offered to prove by Harry Coats, a witness on the stand, “that on the 22d day of September, 1897, he, with other parties, had an interview with the mayor of the city of Alton, Henry Brueggem’an, one of the respondents in this proceeding, sent to him as one of a committee of colored people, to ascertain from him (said Henry Brueg'g'eman) why the children Ambrose and Minnie Bibb, children of Scott Bibb, the relator, were kept out of the Washington school, and that the mayor of Alton, Henry Brueggeman, said to the witness, Harry Coats, that ‘we built the Douglas and Love joy schools exclusively for colored children, and I have the power and authority of the city council to place my police at the school, over the school houses of the city of Alton, except the Douglas and Love-joy schools, and I propose to keep the niggers out of school with white children; that I don’t care where they live, but I will keep them out of the schools with the white children in the city of Alton if I have to use every policeman I have got in the city to do it.’” Like offers of proof were made in connection with the testimony of other witnesses, but the court refused to allow the proof to be made. In so deciding' we are of the opinion the court was in error. Brueggeman, the mayor, was one of the .respondents charg'ed with this illegal action and against whom the petition prays the writ may be awarded. The suit was not brought against the corporation as such, but against certain officials to compel them to perform a public duty. The mayor was the executive head of the city government, charged with the duty of faithfully executing its laws. He was the head of the police department, and the chief of police testified that in sending policemen to exclude from the schools all who had not received tickets of admission to such schools he acted “partly” under orders given by the mayor; and besides, the jury could hardly be expected to believe that these officers were in daily attendance at the school houses for nearly two weeks, turning colored children away, without the knowledge and authority of the mayor and members of the common council. Inasmuch as the evidence was excluded, it must, for the purpose of this decision, be taken as true that while the police force of the city was so engaged and acting under the orders of the head of the city government, a committee of citizens, considering themselves aggrieved and deprived of their lawful rights by this action, waited upon the mayor to ascertain the reason for such action and why the relator’s children were so excluded; and we are of the opinion that what he said in response to this inquiry was a part of the res gestee and was admissible. It was explanatory of the action which he was then taking. The same rule applies to the exclusion by the court below of the testimony of another witness, who was asked by counsel for the petitioner what a certain police officer, James Pack,'said about his act while putting the two Bibb children out of the Washington school. The court having refused to allow witness to answer, the following offer of proof was made: -“Relator offers to prove by the witness that said officer, James Pack, a policeman in the city of Alton, in September, at the beginning of the school year, pushed Minnie and Ambrose Bibb out of the Washington school, and told them and the witness die had been instructed by the mayor to prevent the colored children from attending the Washington school; that they must go to the school built for them exclusively,-—the colored school called the Love joy school.” As this officer was acting under the authority and orders of the mayor, what he said while engaged in the particular act of enforcing that authority and here complained of, and as explanatory thereof, was a part of the res gestee, and admissible.. (Fairfield Turnpike Co. v. Thorp, 13 Conn. 178; Mix v. Osby, 62 Ill. 193; 9 Am. & Eng. Ency. of Law, 348.) Indeed, if the evidence fairly tended to prove that the respondents, among themselves, or between themselves and others, whether such others were members of the board of education or of the police department or were without official position, agreed together to deprive the children of African descent of the city and school district of Alton of their lawful rights and privileges to attend the public schools without exclusion or discrimination on account of their color, then upon proof, prima facie, of such conspiracy, it would have been competent for the petitioner to prove what any one or more of such persons said about the matter while carrying out their unlawful purpose. Section 14 of article 15 of the act to establish and maintain a system of free schools provides that “any school officer or officers, or any other person, who shall exclude or aid in the exclusion from the public schools of any child who is entitled to the benefits of such school, on account of such child’s color, shall be fined, upon conviction, in any sum not less than five ($5) dollars nor more than one hundred ($100) each, for every such offense.” And section 4 of article 16 provides that “all boards of school directors, boards of education or school officers whose duty it now is or may be hereafter to provide in their respective jurisdictions, schools for the education of all children between the ages of six and twenty-one years, are prohibited from excluding, directly or indirectly, any such child from such school on account of the color of such child.” By provisions of the special charter of the city of Alton the common council was vested with the power and authority, among other things, to support and maintain schools; to grade and regulate the same; to prescribe the branches to be taught; to erect, hire or purchase buildings suitable for school houses; to buy or lease sites for school houses, with necessary grounds therefor; to assess a tax for the same, and to enact such ordinances as may be necessary to carry these powers into effect. It is not shown or claimed that these powers, or any of them, have been taken from the council. They carry with them corresponding duties, and we are of the opinion that the mayor and council cannot shield themselves behind the board of education, which they by ordinance have created, and that an unlawful exclusion of colored children from equal school privileges with others, by the board of education, suffered and permitted by the mayor and council, would be sufficient in this case to authorize the issuance of the writ as prayed. The court below should have permitted no evasion of the issues of fact certified to it for trial. In Chase v. Stephenson, 71 Ill. 383, this court said (p. 385): “The free schools of the State are public institutions, and in their management and control the law. contemplates that they should be so managed that all children within the district, between the ages of six and twenty-one years, regardless of race or color, shall have equal and the same right to participate in the benefits to be derived therefrom. While the directors, very properly, have large and discretionary powers in regard to the management and control of schools in order to increase their usefulness, they have no power to make class distinctions, neither can they discriminate between scholars on account of their color, race or social position.” It may be that the wisest of both races believe that the best interests of each would be promoted by voluntary separation in the public schools, and while such voluntary action not in violation of law could not be interfered with by the courts, yet the law is too plain for argument, and has been often decided, that no child otherwise entitled to attend any public school in this State can, on account of the color of such child, be excluded, directly or indirectly, from such school by any school officer or public authorities. It is not doubted, of course, that it was the duty of the mayor and police to preserve the peace and prevent disturbances thereof, from any source, in the vicinity of the schools as well as elsewhere in the city, nor that it was the duty of those who conceived that their legal rights were denied to them to avoid unseemly conduct and seek protection in the courts; but it is no less the duty of the courts to enforce the law as it stands, without respect to race or persons. The.verdict of the jury certified to us is set aside, and the circuit court of' Madison county is directed to submit the issues to another jury and to proceed in the cause in accordance with the views we have expressed and as before directed. Verdict set aside and new trial ordered.