legal principles and the repeated adjudication of this Court, is too firmly established to be now judicially disturbed."

Unquestionably all doubts, where any existed, as to the citizenship of colored persons, and their right to the equal protection of the laws, are settled. But neither of them were denied to them in this State before the adoption of this amendment. At all events, the statutes classifying the youth of the State for school purposes on the basis of color, and the decisions of this Court in relation thereto, were not at all based upon a denial that colored persons were citizens, or that they are entitled to the equal protection of the laws.

It would seem, then, that these provisions of the amendment to the Constitution contain nothing conflicting with the statute authorizing the classification in question. Any State is forbidden to make or enforce any law which will abridge the privileges or immunities of citizens of the United States. This involves the inquiry as to what privileges or immunities are embraced in the inhibition of this clause. We are not aware that this has as yet been judicially settled. The language of the clause, however, taken in connection with other provisions of the amendment, and of the Constitution of which it forms a part, affords strong reasons for believing that it includes such privileges or immunities as are derived from, or recognized by, the Constitution of the United States.

All the privileges of the school-system of this State are derived solely from the Constitution and laws of the State.

The question under consideration is the same that has been heretofore determined in this State, that a classification of the youth of the State for school purposes upon any basis which does not exclude either class from equal school advanvantages is no infringement of the equal rights of citizens secured by the Constitution of the State. We have seen that the law in the case before us works no substantial inequality of school privileges between the children of both classes in the localities of the parties.

In our opinion, the Court below erred in affirming the action of the Court in special term, and the judgment is reversed, with costs, and the cause is remanded to the Court below, with directions to that Court to overrule the judgment of the Court in special term, in overruling the demurrer to the petition for a mandate.

THE NEXT STEP.

The Plaintiff's lawyers, Gordon, Brown and Lamb, excepted .to the opinion and judgment of the Court, and announced their intention to appeal to the Supreme Court of the United States, first, however, asking the Supreme Court of Indiana to grant them a re-hearing.

The opinion of the Superior Court, in the proceeding (April 16th, at Indianapolis) reviewed above, was given by Judge Perkins, and is thus stated briefly in the newspapers of the day:

Great ability and research have characterized arguments upon the motion. I shall not follow the counsel over the wide field they traversed in argument. I shall limit myself to the statements of a few propositions, which seem to me to support the conclusion to which I have arrived.

The ultimate question in the case to be decided is this: Have the children residing in the various districts in the different townships of the State, in which no separate schools have been organized for colored children, a right to attend the school organized in such townships in common with white children? On the 28th of July, 1866, the Fourteenth Amendment became a part of the Constitution of the United States. That amendment ordered that all persons born or naturalized in the United States and subject to the laws and penalties thereof, are citizens of the United States and of the State wherein they reside. Article 8, Section 1, of the Constitution of the State of Indiana, reads: "Knowledge and learning generally diffused throughout a community, being essential to the preservation of free government, it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement, and to provide by law for a general and uniform system of common schools, wherein tuition shall be without charge and equally open to all." This expression "equally open to all," includes at least all citizens, and the system of common schools is composed of the various district schools of the State. At the date of the taking effect of the Fourteenth Amendment to the Constitution of the United States, the State of Indiana had in operation a system of common schools, wherein tuition was free to white children under 21 years of age, they being citizens of the State; and on the taking effect of that amendment, the several schools composing that system, by virtue of the section above quoted from our State Constitution, became open and free to colored children, also being under 21 years of age. As that amendment placed them in the class of citizens, they had the right to enter and attend those schools until reasonably convenient separate schools, substantially equal in educational advantages, were provided for them by the State; and whenever in any township such schools are not provided for them by the State, colored children, being citizens and under 21 years of age, still retain the right conferred upon citizens' children to attend the common schools, equally with the white children in such locality.

Women as Justices of the Peace.

In Maine, February 6, 1874, the Supreme Judicial Court were asked these questions:

First. Under the constitution and laws of this State, can a woman, if duly appointed and qualified as a Justice of the Peace, legally perform all acts pertaining to such office?

Second. Would it be competent for the Legislature to authorize the appointment of a married or unmarried woman to the office of Justice of the Peace; or to administer oaths,take acknowledgements of deeds, or solemnize marriages, so that the same shall be legal and valid?

The opinion of the court, drawn by Chief Justice John Appleton, and concurred in by Justices Jonas Cutting, John A. Peters, Charles Danforth and Wm. Wirt Virgin, is as follows:

To the questions proposed we have the honor to answer as follows:

Whether it is expedient that women should hold the office of Justice of the Peace is not an inquiry proposed for our consideration. It is, whether, under the existing constitution, they can be appointed to such office, and can legally discharge its duties.

By the constitution of Massachusetts, of which we formerly constituted a portion, the entire political power of that commonwealth was vested, under certain conditions, in its male inhabitants of a prescribed age. They alone, and to the exclusion of the other sex, as determined by its highest court of law, could exercise the judicial function as existing and established by that instrument.

By the act relating to the separation of the District of Maine from Massachusetts, the authority to determine upon the question of separation, and to elect delegates to meet and form a constitution was conferred upon the "inhabitants of the several towns, districts and plantations in the District of Maine qualified to vote for Governor and Senators," thus excluding the female sex from all participation in the formation of a constitution, and in the organization of the government under it. Whether the constitution should or should not be adopted, was specially, by the organic law of its existence, submitted to the vote of male inhabitants of the State.

It thus appears that the constitution of the State was the work of its male citizens. It was ordained, established and ratified by them, and by them alone. By it the powers of government were divided into three distinct departments: legislative, executive and judicial. By article 6th, section 4, Justices of the Peace are recognized as judicial officers.

By the constitution, the whole political power of the State is vested in its male citizens. Whenever in any of its provisions, reference is made to sex, it is to duties to be done and performed by male members of the community. Nothing in the language of the constitution or in the debates of the convention by which it was formed, indicates any purpose whatever of any surrender of political power by those who had previously enjoyed it, or a transfer of the same to those who had never possessed it. Had any such design then existed, we cannot doubt that it would have been made manifest in fitting and appropriate language. But such intention is nowhere disclosed. Having regard then, to the rules of the common law as to the rights of women, married and unmarried, as then existing—to the history of the past—to the universal and unbroken practical construction given to the constitution of this State and to that of the commonwealth of Massachusetts, upon which that of this State was modelled—we are led to the inevitable conclusion that it was never in the contemplation or intention of those forming our constitution that the offices thereby created should be filled by those who could take no part in its original formation, and to whom no political power was entrusted for the organization of the government then about to be established under its provisions, or for its continued existence and preservation when established.

The same process of reasoning which would sanction the conferring judicial power on women under the constitution would authorize the giving

them executive power by making them Sheriffs and Major-Generals.

But while the offices enacted by the constitution are to be filled exclusively by the male members of the State, we have no doubt that the Legislature may create new ministerial offices not enumerated therein, and, if they deem expedient, may authorize the performance of the duties of the offices so created by persons of either sex.

To the first question proposed, we answer in the negative.

To the second, we answer that it is competent for the Legislature to authorize the appointment of a married or unmarried woman to administer oaths, take acknowledgements of deeds or solemnize marriages, so that the same shall be legal and valid.

Justices Charles W. Walton and Wm. G. Barrows unite in a dissenting opinion, and Justice J. G. DlCKERSON gave a separate dissenting opinion.

Decision on the Powers of a Constitutional Convention.

In Pennsylvania, the new Constitution was adopted by a vote of a majority of the Convention who made it, November 3, 1873, and was submitted to a vote of the people, December 16, 1873, by whom it was adopted. Pending this vote of the people application was made to Judge Stowe of the District Court for Allegheny county, for an injunction to restrain the Secretary of the Commonwealth from issuing his proclamation for the election—which was refused; and the case was carried to the Supreme Court,$by whom an opinion was given, November 3, 1874, which has historical value for its discussion of the powers of a Constitutional Convention. It was delivered by Chief Justice Agnew, and, so far as it appears, was concurred in by all the Judges:

Robert Woods et al. vs. M. S. Quay, Secretary of State et al. Appeal from the decree of the Court of Common Pleas of Allegheny county. In equity.

The change made by the people in their political institutions, by the adoption of the proposed Constitution since this decree, forbids an inquiry into the merits of the case. The question is no longer judicial, but in affirming the decree we must not seem to sanction any doctrine in the opinion dangerous to the liberties of the people. The claim for absolute sovereignty in the Convention, apparently sustained in the opinion, is of such magnitude and overwhelming importance to the people themselves, it cannot be passed unnoticed. In defence of their just rights, we are bound to show that it is unsound and dangerous. Their liberties would be suspended by a thread more slender than the hair which held the tyrant's sword over the head of Damocles, if they could not, while yet their existing government remained unchanged, obtain from the Courts protection against the usurpation of power by their servants in the convention. When they become complainants, the convention must defend and show their authority.

It was contended in the case of Francis Wells et al. vs. James Bain et al., involving the legality of an ordinance of the Convention, argued at Philadelphia in December last, that the Convention had the power to ordain ordinances having the present force of law; and the instant power to proclaim a constitution, binding without ratification, irrespective of the matter adopted by the people, to exercise their right to alter or amend their frame of government. This imputed sovereignty in a convention called and organized under a law, as the very means adopted by the people to exercise their reserved right of amendment, owing to the briefness of the time, was not discussed in that case with the fulness the importance of the question to the people demanded.

There is no subject more momentous or deeply interesting to the people of this State than an assumption of absolute power by their servants. The claim of a body of mere deputies to exercise all their sovereignty, absolutely, instantly, and without ratification, is so full of peril to a free people, living under their own instituted government and a well-matured bill of rights, the bulwark and security of their liberties, that they will pause before they allow the claim and inquire how they delegated this fearful power and how they are thus absolutely bound and can be controlled by persons appointed to a special service. Struck by the danger and prompted by self-interest, they will at once distinguish between their own rights and the powers they commit to others. These rights it is, the judiciary is called in to maintain. The very rights of the people and freedom itself demand, therefore, that no such absolute power shall be imputed to the mere delegates of the people to perform the special service of amendment, unless it is clearly expressed, or as clearly impfied, in the manner chosen by the people to communicate their authority.

A Convention has no inherent rights; it exercises powers only. Delegated power defines itself. To be delegated it must come in some adopted manner to convey it by some defined means. This adopted manner therefore becomes the measure of the power conferred. The right of the people is absolute in the language of the bill of rights, "to alter, reform, or abolish their Government in such manner as they may think proper." This right being theirs, they may impart so much or so little of it as they shall deem expedient. It is only when they exercise this right, and not before they determine by the mode they choose to adopt, the extent of the powers they intend to delegate. Hence the argument which imputes sovereignty to a Convention, because of the reservation in the bill of rights, is utterly illogical and unsound. The bill of rights is a reservation of rights out of the general powers of government to themselves, but is no delegation of power to a Convention. It defines no manner or mode in which the people shall proceed to exercise their right, but leaves that to their after choice. Until then it is unknown how they will proceed, or what powers they will confer on their delegates. Hence we must look beyond the bill of rights to the mode adopted by the people to find the extent of the power they intend to delegate. These modes were stated and discussed in the opinion in Wells et. al. vs. Bain et. al. If, by a mere determination of the people to call a Convention, whether it be by a vote or otherwise, the entire sovereignty of the people

passes ipso facto into a body of deputies or attorneys, so that these deputies can, without ratification, alter a government and abolish its bill of rights at pleasure, and impose at will a new government upon the people without restraints upon the governing power, no true liberty remains. Then the servants sit above their masters by the merest imputation, and a people's welfare must always rest upon the transient circumstances of the hour, which produce the convention and the accidental character of the majority which controls it. Such a doctrine, however suited to revolutionary times, when new governments must be formed as best the people can, is wholly unfitted when applied to a state of peace and to an existing government, instituted by the people themselves and guarded by a well matured bill of rights.

To impute absolute power to a Convention of mere delegates, from a vote on the simple question of calling it, as for example under the act of 1871, is to assume a grant by the people without terms, without the means of limitation, and without any clearly evinced intent. It is an assumption without a just basis against the security, the interest and the welfare of the people, which no body of men have a right to make, and no judicial reason or rule can justify. It contravenes the rightful and. necessary prerogative of the people to determine their own institutions by ratification or rejection, and in this respect contravenes the very language and spirit of the Bill of Rights, by which they reserved to themselves the right to change their form of government. It also conflicts with that universal rule, that no agent or subordinate can claim the powers, liberties or franchises of the people, except by their express grant, or by a plain and certain implication. What intent is more doubtful? Nay, what clearer non sequitur is it, than to affirm, because a people vote to call a Convention, they therefore strip themselves of their most essential power to ratify or reject the work of their delegates? The inference is the very reverse; for a vote for a Convention, which must be called afterwards by law, from its very nature refers the Constitution and powers of a Convention so to be called, to the law, which the people use to accomplish their purpose. Such was the nature of the act of 1871. It was simply an order assuming its mandatory character to call a Convention. It was not a call itself, and it provided no terms in which the call should be made. The people were silent on this point, and therefore no implication can be made against their essential right to protect themselves. The mandatory character of the call does not alter the inference from the vote, or extend the intent evinced by it. The effect of the vote remains simply, that a Convention shall be called. The elector expressed no power to be conferred. The total vote evinced no common terms, and certainly none that the power to be transferred to the Convention when called and organized should be that of absolute will, without ratification or approval. This is tested by a very simple and practical question: Did the people when they voted to call a convention intend to strip themselves of the power to ratify or reject the work of their servants? If so, where is the evidence of this intent? Every elector knows as a fact no such proposition was made to him. On the question of power, the minds of the people met on no common ground of intent. The desire of one was not that of another, and a third may have differed from both. Therefore, to impute absolute sovereignty of will to the Convention to be called, from the vague and inexpressive implication of the vote on the question of calling a convention, is to assume a grant where none exists, or can be fairly inferred, compatibly with the rights and liberties of the people. Its effect is to declare the impotency of the people, and the absolute potency of their agents. It is to determine a question of authority against the principal, and in favor of the agent or servant, without any evidence of an intention to transmit the power.

The people have the same right to limit the powers of their delegates, that they have to bound the power of their representatives. Each are representatives, but only in a different sphere. It is simply evasive to affirm that the Legislature cannot limit the right of the people to alter or reform the government. Certainly it cannot. The question is not upon the power of the Legislature to restrain the people, but upon the right of the people, by the instrumentality of the law, to limit their delegates. Law is the highest form of a people's will in a state of peaceful government. When a people act through a law the act is theirs, and the fact that they use the Legislature as their instrument to confer their powers makes them the superiors, and not the Legislature. The idea which lies at the root of the fallacy, that a convention cannot be controlled by law, is that the convention and the people are identical. But when the question to be determined is between the people and the convention, the fallacy is obvious. Such a metonymy may do for a flourish of rhetoric, but not for grave argument. The parties to the question are the people on the one hand and the convention on the other. The people allege an usurpation of power in this, that the convention seek to bind them without their ratification. The question then is, what power was conferred? The judiciary sits to decide between them. The people having challenged their power to set a government over them at will, the agents must show their authority to do this. The latter put in evidence the act of 1871 as their authority. Then the issue is, does the act of 1871, simply ordering a Convention to be called, confer this absolute, extraordinary and dangerous power upon a body of men not yet called into being, and which can have neither being nor power except by the further act of the people through the instrumentality of a law. To make the law odious, it is assumed that the Legislature is or may be corrupt. But this is aside from the true question of power. In a governmental and proper sense, law is the highest act of a people's sovereignty, while their government and constitution remain unchanged. It is the supreme will of the people expressed in the forms and by the authority of their constitution. It is their own appointed mode through which they govern themselves, and by which they bind themselves. So long as their frame of government is unchanged in its grant of all legislative power, these laws are supreme over all subjects, unforbidden by the in

strument itself. The calling of a convention and regulating its action by law is not forbidden in the Constitution. It is a conceded manner, through which the people may exercise the right reserved in the bill of rights. It falls, therefore, within the protection of the bill of rights as a very manner in which the people may proceed to amend their Constitution, and delegate the only powers they intend to confer, and as the means whereby they may, by limitation, defend themselves against those who are called in to exercise their powers. The Legislature may not confer powers by law inconsistent with the rights, safety and liberties of the people, because no consent to do this can be implied, but they may pass limitations in favor of the essential rights of the people. The right of the people to restrain their delegates by law cannot be denied, unless the power to call a convention by law and the right of self-protection be also denied. It is, therefore, the right of the people and not of the Legislature to be put by law above the convention, and to require the delegates to submit their work for ratification or disapproval.

To argue a want of authority in the law from the alleged character of those who passed it is bad logic, and an undeserved reproach, in view of the liberality of the subsequent act of 1872, which opened a wide door to men of all parties, and filled the convention with the best men in the State. When it is conceded that a convention can be called and organized by law, the number and qualifications of the delegates prescribed, their districts defined, their mode of selection or appointment determined, their time and place of meeting fixed, and their compensation declared by law, the binding force of law must be conceded. The convention was a creation of law, and its members the offspring of law—fitly by the mere force of law, without a popular election. How, then, can the power of law be denied? Without it no delegates had existed, and no power had been transmitted to them. It is a solecism and a fallacy to assert that a law has the power to transmit the authority of the people, and yet is a nullity in the terms of its transmission. If the authority of the people passes to the convention outside of the law, the people are left without the means of self-protection except by revolution. Then the singular spectacle is presented of the absolute sovereignty of the people being vested in a body of agents without any known means of transmission or of limitation. But clearly this cannot be when the fundamental rights of the people are at stake. To estop them from their right to accept or reject the work of the convention, there must be an evident channel pointed out, through which their power passed to the convention to ordain at pleasure a constitution or binding ordinances. The force of the argument cannot be avoided, by a reference to the well-known purity of character of the delegates. The personnel of the convention has nothing to do with the question of delegated power. It may help to suppress an inquiry into the power, but however presently popular the doctrine of self-imputed sovereignty may be to those whose integrity forbids intentional wrong, as a question of power the doctrine is unfounded in principle, repugnant to right reason, incompatible with safety, dangerous to liberty, and unsuited to times of agitation and excitement, which sometimes overcome the people.

No argument for the implied power of absolute sovereignty in a convention can be drawn from revolutionary times, when necessity begets a new government. Governments thus accepted and ratified by silent submission afford no precedents for the power of a Convention in a time of profound tranquillity, and for a people living under self-established, safe institutions. While Conventions are well-known historical modes of procedure in the formation of Constitutions, they prove nothing; for history does not define their 'powers, or estop the people from asserting their own. There can be no estoppel by precedent against the fundamental rights of the people. Limits must be set to power. Liberty demands absolute security. No people can be safe in the presence of a divine right to rule, or of self-imputed sovereignty in their servants to bind them without ratification.

Nor is the improbability of a wrong use, or an abuse of power, a sound argument in the light of our own knowledge. We have seen a public sentiment formed and elections carried in a few months, and yet the subject of excitement was as short-lived as it was sudden. Men have been proscribed for religion's sake, and for a foreign birth. Moving like a whirlwind, such excitements have filled a Legislature with its partisans. In our day, conventions, imputing sovereignty to themselves, have ordained secession, dragged States into rebellion against the well-known wishes of their quiet people and erected in the midst of the nation alien State governments, and a Southern Confederacy. The negro is now a citizen and an elector, and yet the time is not long gone by since the word "white" was voted by a former convention into the article on elections. Who can foretell the next subject of agitation? The times abound in contests. Labor and capital are in strife. Agriculture wars on transportation. Communism, internationalism and other forms of agitation excite the world. Let conventions in such seasons possess, by mere imputation, all the powers of the people, and what security is there for their fundamental rights? Not the bill of rights, nor even the particular sentiment that brings the Convention into existence. Once assembled, a Convention, according to this dogma, is all powerful and may annul any declaration in the bill of rights, and proclaim a constitution without let or hindrance. Who will predict what effects may be produced by combinations foreign to the purpose which actuated the call? The fundamental rights of the people, the true principles of civil liberty, the nature of delegated power, and the liability of the people to temporary commotion, all rise up in earnest protest against such a doctrine of imputed sovereignty in the mere servants of the people.

Then look at the constitution of the body to whtch this power may be imputed. The number may be any designated in the law, 133—thirty-three—or three times three. The delegates

may not be chosen by the whole people—but by portions of the people of one party, as under the act of 1872. On what principle of sound reason or logical deduction does such a body possess, by mere imputation, all the powers of the people, not conferred on them by law? They possess them by no act of the people independently of law. And certainly there is no popular afflatus outside of the law to breathe into them the spirit of prophecy in the name of the people.

In conclusion, we find nothing in the Bill of Rights, in the vote under the act of 1871, or the authority conferred in the act of 1872, nothing in the nature of delegated power, or in the Constitution of the Convention itself, which can justify an assumption that a convention so called, constituted, organized and limited, can take from the people their sovereign right to ratify or reject a constitution or ordinance framed by it, or can infuse present life and vigor into its work before its adoption by the people.

Decree affirmed.

The case of Wells et al. vs. Bain et ah, referred to in the opinion above, was decided in Philadelphia, December 2, 1873, at Nisi Prius, before Gordon, J., with Agnew, C. J., SharsWood, Williams, and Mercur, JJ., as assessors.

The Constitutional Convention adopted an Ordinance, in which five Commissioners were appointed to conduct the election on the adoption of the Constitution, in Philadelphia, the sixth section of the act of the Legislature of 1872, having provided that "the election to decide for or against the adoption of the new constitution or specific amendments, shall be conducted as the general elections of this Commonwealth are now by law conducted."

Bills were filed by citizens praying an injunction to restrain the Commissioners of Philadelphia from expending any money in relation to the election, and the Commissioners appointed by the Convention from holding such election.

The Court, after argument, held that the ordinance relating to the election in the city of Philadelphia is flatly opposed to the Act of 1872, and is therefore illegal and void. The Opinion, which is elaborate, concludes with this paragraph:

"The Convention is not a co-ordinate branch of the Government. It exercises no governmental power, but is a body raised by law, in aid of the popular desire to discuss and propose amendments, which have no governing force so long as they remain propositions. While it acts within the scope of its delegated powers, it is not amenable for its acts; but when it assumes to legislate, to repeal and displace existing institutions before they are displaced by the adoption of its propositions, it acts without authority, and the citizens injured thereby are entitled, under the Declaration of Rights, to an open Court and to redress at our hands."

The election was held under the general election law, all over the State.