Vol. II.] ALDRICH V. WRIGHT. [No. 2. the Constitution, is reduced to an aggravating abstraction by the error of giving to vermin the benefit of a test of the reasonable necessity of defensive homicide, founded on the transcendent legal worth of human life. It is reasonably necessary that the person who kills another in his own defence should have first retreated as far as he conveniently or safely can, to avoid the violence of the assault. And though, under some circumstances, in a time of war, it may be a reproach to flee from the public enemy; yet, between two citizens under the same government in a time of peace, "the law countenances no such point of honor, because the king and his courts are the vindices injuriarum, and will give to the party wronged all the satisfaction he deserves. .. The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault will permit him." 4 Bl. Com. 185; 1 Hale P. C. 481. This maxim of retreating to the wall is a statement of fact properly illustrating the weight to be given to the sanctity of human life in determining the reasonable necessity of killing a human being. It has been turned into law, and applied, as a rule of law, in cases of homicide, where the accused set up, in justification, the prevention of a felony; but it is not applicable to the defensive destruction of vermin. What authorities are there requiring a retreat in this case? None have been found, though diligent search has been made. In Wadhurst v. Damme, Cro. Jac. 45, it was not supposed that the defendant was liable on the ground that he could have saved the conies, who were rightfully in the warren, by driving them away from the plaintiff's dog who was wrongfully there. In Barrington v. Turner, 3 Levinz, 28, and Protheroe v. Mathews, 5 C. & P. 581, it was not claimed that the defendants' liability for killing the dogs depended upon their ability to save the deer who were rightfully in the parks, by driving them away from the dogs who were wrongfully there. In Keck v. Halstead, Lutw. 1494, it was not held that the defendant should not kill the dog, so long as he and his family could retreat into his house. In Wells v. Head, 4 Č. & P. 568, and Parrott v. Hartsfield, 4 Dev. & Bat. 110, no one imagined that the defendants were bound to drive their own sheep, who were on their own land, away from trespassing dogs, if by that means the sheep could be saved. In Morris v. Nugent, 7 C. & P. 572, the idea was not advanced that a man attacked by a dog in the highway cannot kill the dog if he can save himself by taking to flight. In King v. Kline, 6 Pa. St. 318, there is no intimation that the law required the defendant to hang his fish higher out of the dog's reach. In Morse v. Nixon, 6 Jones (N. C.), 293, if the plaintiff's hog had been in the defendant's poultry yard, and could not have been driven out, the plaintiff would hardly have urged that it was the legal duty of the defendant to drive his poultry out, and surrender the possession and control of his land to a destructive brute. In, Brill v. Flagler, 23 Wend. 354, when the plaintiff's dog was howling around the defendant's house, night and day, the plaintiff did not suggest the reasonable necessity of the defendant and his family seeking repose elsewhere, and running away from the howling instead of stopping it. To hold, in this case, that the geese should have been driven away from their home, would be equivalent to holding that they should have been Vol. II.] ALDRICH v. WRIGHT. [No. 2. killed. The doctrine of retreat would leave them a right to nothing but life in some place inaccessible to minks, where life might be unremunerative and burdensome. But that doctrine being irrelevant when the aggressor is not shielded by the inviolability of the human form and the sacred quality of human life, the geese were not bound to retreat. As against the minks, they had a right not only to live, but to live where the defendant chose, on his soil and pond, and to enjoy such food, drink, and sanitary privileges as they found there, unmolested by these vermin, in a state of tranquillity conducive to their profitable nurture. And it was for the jury to say, not whether he could have driven them away from the minks, but whether his shot was reasonably necessary for the protection of his property, considering what adequate and economical means of permanent protection were available, the legal valuation of vermin life, and the disturbance and mischief likely to be wrought upon his real and personal estate if any other than a sanguinary defence were adopted. The plaintiff's claim, if upheld, would reach far beyond an unjust judgment taking from this defendant the sum of forty dollars and costs. It would establish a principle of law, novel in theory and practice, subversive of the authorities, extensive in its operation, and pernicious in its effect. If the defendant's geese were bound to retreat before these vermin, it follows that horses, cattle, sheep, swine, and poultry are bound, at common law, to retreat and to be driven by their owners from their own land, if retreat is possible, regardless of course or distance, before every dog that chooses to attack them: if A's dog besets B's house, and exhibits an inclination to attack the occupants when they come out, they must remain shut up till he sees fit to raise the siege; friends who would come to their relief can do nothing but retreat; and, the law of retreat not being limited to any particular lines, every person, on his own land or in the highway, menaced by another's dog, is bound not to use a deadly weapon, if he can escape by taking refuge in a tree and remaining there an indefinite period; and, in many ways, the human industries and liberties of the country are subject to interruptions, hindrances, and restrictions not heretofore judicially established or practically acknowledged. In a practical view, the perils, inconveniences, and damages caused by perverse and unruly animals, under such a system of brutish dominion, assume a serious aspect. In a legal view, the expansion of the duty of retreat is a contraction of the natural and constitutional right of defending person and property. Verdict set aside. Vol. II.] CORY V. CARTER. [No. 2. SUPREME COURT OF INDIANA. [NOVEMBER, 1874.] CONSTITUTIONAL - XIVTH LAW. EFFECT OF THE XIIITH AND AMENDMENTS UPON THE SOVEREIGN POWERS OF THE STATES. A STATE MAY PROVIDE FOR THE EDUCATION OF WHITE AND COLORED CHILDREN IN SEPARATE SCHOOLS. CORY v. CARTER. A state statute provided, in substance, that a school tax should be levied without regard to the race or color of the owner of the property taxed; that all children, without regard to race or color, should be included in the enumeration for school purposes, the colored children to be enumerated in separate lists, and separate school-houses and teachers to be provided for them. In the event of there not being a sufficient number of colored children in any district to warrant the erection of a school-house and the employment of a teacher for their separate use, it was made the duty of the proper officers to consolidate adjoining districts, or otherwise provide for the education of such children, their full proportion of the school revenue to be expended for their benefit. Held: 1. That the act was not an infraction of the section of the Constitution of the state which provides that the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities which shall not equally belong to all cit izens. 2. That it was not an infraction of the section of the Constitution of the state which provides for the establishment of a uniform system of public schools, equally open to all. 3. That it was not in conflict with section 2 of article 4 of the Constitution of the United States which declares that the citizens of one state shall enjoy the privileges of citizens in the several states. 4. That it was not in conflict with the thirteenth or fourteenth amendments of the Constitution of the United States, nor any of the amendments of earlier date; nor with the act of Congress known as the "Civil Rights Bill." Held, also, that the thirteenth and fourteenth amendments do not impose limitations upon the powers of the states to fix, secure, and protect the rights, privileges, and immunities of their citizens as such, of whatever race or color they may be. That the only restrictions which said amendments impose upon the sovereignty of the states are (1) to prevent slavery; (2) to prevent negroes or mulattoes being deprived of national rights; (3) to compel the states to recognize negroes or mulattoes as their citizens; (4) to compel the states to give to negroes or mulattoes the same rights which their white citizens enjoy. THE facts are stated in the opinion. BUSKIRK, J. This was a proceeding by mandate on the part of the appellee against the appellants. The appellee, in his petition, alleged that he was a citizen of the State of Indiana, and resided in school district No. 2, in Lawrence township, Marion County, in the said state; that he was the father of two children, Mary and Edward Carter, and the grandfather of Lucy and John Carter, all of whom resided with him; that he was a negro of African descent, and that his said children and grandchildren were all negroes of the full blood and of the same descent; that his children and grandchildren were respectively of the age that entitled them to the benefits of the common schools in the said district; that there was a common school for white children in progress in said district, and that his said children and grandchildren presented themselves at the school-house in said district and demanded admission, and to be taught Vol. II.] CORY V. CARTER. [No. 2. therein with the white children, but were refused admittance by the appellees, Beaver and Craig, the director and teacher of said school, for the reason that the said school was a school for white children and not for negro children; that after the refusal aforesaid he caused to be served upon the appellant a written request and demand that his said children and grandchildren should be received and taught in the said school with the white children of said district, but they were refused admission only on the ground that they were negroes; that said appellants and all other persons have wholly neglected, failed, and refused, and still neglect, fail, and refuse to provide any school in said district, or in any adjoining district near enough for said children or grandchildren to attend as scholars; and that by reason of the premises his said children and grandchildren are denied all opportunity to attend any school in said district or elsewhere in the neighborhood, as in right they are entitled to do. There is no allegation that the trustee of said school district No. 2 had failed or refused to provide the means of education for such children within the district, outside of the said school for white children, to the extent of their proportion, according to the number of the school resources of the said district. The aid of the court was requested to declare the right of admission of said negro children into the school for white children; and to compel the appellants to admit them. An alternate writ was issued against the appellants, requiring them to admit such children into the school in said district for white children, or appear and show cause why they should not so admit such children. The appellants appeared and filed separate demurrers to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, but the demurrers were nonsuited; and the appellants refusing to plead further, but electing to stand by their exceptions to the rulings of the court, the court gave judgment for a peremptory writ of mandate. The appellants appealed to the general term, where the judgment of the special term was affirmed. The error assigned is, that the superior court in general term, erred in affirming the judgment of the court in special term. The question presented for our decision is, whether the court below erred in overruling the demurrer to the complaint, the correct solution of which will depend upon the proper construction to be placed upon the Constitution and statutes of this state, and the Constitution of the United States; and as preliminary to the consideration of the grave constitutional questions arising in the record, we proceed to inquire what provision the legislature has made for the education of the white and colored children of the state. The act of March 6, 1865, provided for the annual assessment and collection of a tax on the property, real and personal, in the state (except that owned by negroes and mulattoes), for supporting a general system of common schools in the state. It provided for the enumeration each year of the white children within the respective townships, towns, and cities in the state, between the ages of six and twenty-one years exclusive of married persons. It provided the officers and agencies for the system, the mode and means of carrying it on, for locating and establishing Vol. II.] CORY v. CARTER. [No. 2 schools and carrying them on, for building school-houses, and employing teachers, &c. It was essentially white none but white children between the named ages, and who were unmarried, were entitled to its privileges. 3 Ind. Stat. 440-472; Draper v. Cambridge, 20 Ind. 268. At the session of the legislature of this state next after the ratification of the fourteenth amendment to the Constitution of the United States, an act was passed by the general assembly of this state, entitled: "An act to render taxation for common school purposes uniform, and to provide for the education of the colored children of the state," which was approved May 13, 1869, and is as follows: "SECTION 1. Be it enacted by the General Assembly of the State of Indiana, That in assessing and collecting taxes for school purposes under existing laws, all property, real and personal, subject to taxation for state and county purposes, shall be taxed for the support of common schools, without regard to the race or color of the owner of the property. "SECT. 2. All children of the proper age, without regard to race or color, shall hereafter be included in the enumeration of the children of the respective school districts, townships, towns, and cities of this state for school purposes; but in making such enumeration the officers charged, by law, with that duty, shall enumerate the colored children of proper age, who may reside in any school district, in a separate and distinct list from that in which the other school children of such district shall be enumerated. "SECT. 3. The trustee or trustees of each township, town, or city shall organize the colored children into separate schools, having all the rights and privileges of other schools of the township: Provided, There are not a sufficient number within attending distance, the several districts may be consolidated and form one district. But if there are not a sufficient number within reasonable distance to be thus consolidated, the trustee or trustees shall provide such other means of education for said children as shall use their proportion, according to number, of school revenue to the best advantage. "SECT. 4. All laws relative to school matters, not inconsistent with this act shall be deemed applicable to colored schools. "SECT. 5. Whereas an emergency exists for the immediate taking effect of this act, the same shall be in force from and after its passage. 3 Statutes, 472." Prior to the passage of such act, the assessment of taxes for school purposes had been confined to the property of white persons. The first section provided for the levy and collection of a tax for school purposes upon all the property within the state subject to taxation, without regard to the race or color of the owner. The second section adds to the enumeration, directed in section 14 of the act of March 6, 1865, all colored children of the proper age, within the state, and directs them to be enumerated at the same time with the white children, but in a separate list or class from that in which the white children are enumerated. The third section commands the trustees of each township, town, or city in the state, to organize the colored children therein into separate schools, with all the rights and privileges of white schools in the particular township, town, or city. But if the number of colored children within attend |