Moreau v. Grandich

Ethridge, J., delivered the opinion of the court. Appellees, Antonio Grandich and his wife, filed a petition for mandamus in the circuit court of Hancock county against appellants seeking to compel them to admit the children of the appellees to the white public school of Bay St. Louis in said county. The petition for mandamus alleges that Grandich and wife were citizens and taxpayers of Hancock county residing in — 572 — Bay St. Louis, within a separate school district, and. that the appellants are trustees of the said separate-school district, and that the children of the appellees,, four in number, were at school' age and were entitled!to attend the white public school in the said separate-school district. It is alleged that the petitioners, Grandich and wife, were legally married on the 3d day of October, 1889, in Hancock county under marriage license-issued to them as members of the white race; said marriage having been performed by a justice- of the peace of said county and state. It is further alleged that their children had been admitted to the white schools up until the year 1914, when the trustees excluded them from the said school upon the idea that they were members of the colored race. It is further alleged that the children were all white with a slight strain of Indian or red blood in their veins, and that the exclusion of said children from the school resulted in irreparable damages, humiliation, and disgrace, being" classed as members of the colored race. The appellants demurred to the petition on the following grounds: First, the declaration shows that the board of trustees acted in a judicial capacity in refusing to let the-children of petitioner attend the white schools, and the court had no jurisdiction to review their acts. Second, that the declaration attempts to make the court pass on a matter that had been passed upon by the trustees and which was a discretionary matter with’the trustees. Third, that the declaration undertakes to make the court pass upon a matter that the trustees had passed on judically, and that the declaration shows that no appeal had been taken from the decision of the trustees to the superintendent of education in the manner provided by law. And,'fourth, that the declaration shows on its face that the plaintiffs, after being refused admission to the school, failed to-take an appeal to the superintendent of education, who-was the party under the law to pass on said appeal. — 573 — The demurrer was overruled. Thereupon the school "trustees pleaded'the general issue, and pleaded specially that the children of plaintiffs have been kept from the white public schools because they belonged to the colored race and had been offered attendance to the colored school and had refused to attend the colored school. On this plea, issue, in short, is joined by consent. The proof on the part of the appellee showed that Christiana Jourdan was a great-grandmother of the children sought to be admitted to school by mandamus, and that ■ Christiana was an Indian, and that she was the wife of a white man, and that the descendants-of said party in line to the petitioners for mandamus had each intermarried with the white race. It appears that two of the daughters of Christiana married negroes. The testimony for the trustees was that Christiana, the great-grandmother, was a negro, and that she was classed and associated with the negroes at church and other social gatherings. It appeared that the color of Christiana was what the witness termed as being “griff,” or a shade lighter than the negro. As some -of the witnesses expressed it, “griff” being a cross between a mulatto and a negro. There was no distinct proof that this color was caused by any infusion of white blood, and the degree of negro blood in the said party was not proven; but the proof went to show that she had negro hair, was dark or ginger-cake color, and' that she associated, as far as she associated with any one, with negroes exclusively, and in attendance at church she and her children sat with the negroes. In this state •of the evidence, the court granted a peremptory in■struction to find for the appellees and granted the mandamus to compel their admission to the white public •school. It appears from the briefs that the circuit judge in passing upon the proposition adopted the theory that "the marriage statute, section 263 of the Constitution, which reads as follows: “The marriage of a white per — 574 — son with a negro or mulatto, or person who shall have one-eighth or more of negro blood, shall be unlawful and void,” was controlling in fixing the status of “white” and “colored” within the meaning of section 207 of the Constitution, which provides that “seperate schools shall be maintained- for the white and colored races.” We do not think the marriage statute has any influence or controlling effect upon this question. Both sections reflected the purpose of the Constitution makers to provide for a separation of the races in the state. The marriage statute fixed the degree or proportion of ■blood which would permit marriage, and fixed a definite standard for the purpose of preventing the evils of bastardy from falling upon children, as it might do if there was an uncertain standard, was designed to inform, precisely, all persons contracting marriage as to the effect of such marriage; but this does not necessarily make children having less than one-eighth negro blood members of the white race. In the section fixing the separate schools ‘for the white and colored races, the Constitution makers must be assumed to have used those terms according to their fixed and settled meaning in this country. The word “white” defined means member of the white or Caucasian race, and.the word “colored” means, not only negroes, but persons who are of the mixed blood. A similar question was before the Kentucky supreme court in the case of Mullins et al. v. Belcher, 142 Ky. 673, 134 S. W. 1151, Ann. Cas. 1912D, 456. The provision of the Kentucky Constitution there construed reads as follows: “In distributing the school fund, no distinction shall be made on account of race or color, and separate schools for white and colored children shall be maintained.” Const, section 187. The court construing this provision says: “Who are ‘colored children’ within the meaning of the above section? While it may be doubted if appel — 575 — lants’ proportion of negro blood is as small as one-sixteenth, it is not contended that it is less. We shall therefore consider the case from this standpoint; that is, that their proportion of negro blood is one-sixteenth. For appellants it is insisted, that, in order to constitute a person a ‘colored person,’ he must not only have an appreciable admixture of negro blood, but must also show the racial characteristics of the negro. In this connection, it is insisted that appellants are as fair as members of the white race, and there is nothing in their personal appearance to indicate the presence of negro blood. In our opinion, however, the question does not depend upon personal appearance. The color of the person may be one means of indicating the class to which he belongs; hut the question in its final analysis depends upon whether or not the person has, or has not, an appreciable admixture of negro blood.” The court held that a person having one-sixteenth of negro blood could not be admitted to a white school. In the case of Lee v. New Orleans & Great Northern R. Co., 125 La. 236, 51 So. 182, the Louisiana court had occasion to construe a statute of that state which required the railroad companies to provide equal, but separate, accommodations for the white and colored races, making it a misdemeanor for any train officer to assign to a coach persons - other than the ones for persons of his race. In that case, Sam Lee and his wife were married in Louisiana at a time when it was lawful for a white person to intermarry with a person of the colored race, and there was no doubt as to the validity of the marriage and the legitimacy of the children. In the conclusion of its opinion upholding and finding that the children of this marriage were “colored” within the meaning of the Louisiana law involving said statute, the court said: “On the question of race there is no legal presumption either way. The issue was one purely of fact, to be determined, not only by evidence of the admixture of — 576 — negro blood, but by evidence of reputation, of social reception, and of the exercise of the privileges of a white man.” In the ease of Mullins v. Belcher, above cited, there is a ease note in the Annotated Oases 1912D report of this case, citing many authorities upon the question of who are members of the colored race, and it appears that almost the unanimous holding of the courts and especially of the Southern States, is to the effect that descendants of Africans are classed as members of the colored race, regardless of the admixture, as long as there is an appreciable amount of negro blood found. In our own state, in the case of Heirn v. Bridault, 37 Miss. 209, it was held that a colored person embraces $11 persons of African descent. See, also, the definition of “colored” and “white” in Words and Phrases, both first and second series. We think therefore that the judge was in error in granting the peremptory instruction to find for the petitioners and granting mandamus. It is next to be determined as to whether an appeal under the school law from the trustees to the superintendent was- an exclusive remedy. In our opinion it is not an exclusive remedy. The right to admission “to the public schools of the state is a valuable right upon which litigants have a right to a judicial determination. In our view, the trustees of schools are not judicial officers and do not exercise judicial functions. They are administrative bodies, and while appeals lie from the decision of the trustees to the county superintendent, and from the county superintendent to the state board of education, these appeals deal with administrative matters and do not constitute res .adjudícala. Hobbs v. Germany, 94 Miss. 469, 49 So. 515, 22 L. R. A. (N. S.) 983. Under sections 1 and 2 of our Constitution, separating the powers of goverment into legislative, executive, and judicial departments, persons in one department of government cannot exercise the powers of any other department of the govern-' — 577 — ment, and there is no provision in reference to school trustees that modifies these provisions. There are many eases where proceedings before administrative bodies are analogous to ■ proceedings in courts. They frequently hear and determine facts, but their findings and judgments have no conclusive effect and do not constitute res adjudicata. While school trustees may determine primarily whether a child is of a white or colored race, its finding is not a judicial determination and' does not preclude the courts from determining these facts. The judgment of the court is reversed, and the .cause remanded. Reversed and remanded