
    Polke and Another v. Harper.
    ERROR to the Henry Circuit Court.
    
      Friday, June 9.
   Stuart, J.

The plaintiffs filed a petition for a mandamus against Harper, as trustee of a school district in Henry county, requiring him to appear and show cause why he should not, as such trustee, remove certain colored children from the school, &c. The petitioners alleged that they were white residents and inhabitants of, and taxpayers in the school district in question; that there was there at that time a common district school, open to all the white inhabitants of the district, taught by Miss Grey, under the direction and supervision of Harper as such trustee, &c.; that the petitioners had several children whom they were desirous to educate at said school, but were prevented by the presence and attendance of four colored children as scholars; that they had served written notice on Harper to remove the colored children from school, which he had failed and refused to do. Hence they prayed for a peremptory mandamus, See.

W. Grose, for the plaintiffs.

J. S. Newman and J. P. Siddall, for the defendant.

In answer Harper made return, denying that the school taught by Miss Grey was a district school; denying that there was any district school under his supervision in the district; but on the contrary that Miss Grey's school was a private enterprise, setting out the contract between the teacher and her patrons, &c., and that he had no control over it, &c.

To this return the plaintiffs demurred; the Court overruled the demurrer; and on refusal to withdraw, the petition was dismissed at their costs. The petitioners bring the case to this Court.

The question whether the trustee of the district has a right, as such, to remove colored children from the district school, is not raised in the record. The return denies that there is any district school; and the demurrer admits what is alleged in the return, namely, that Miss Grey's school, the only one there, is a private school. With such a school Harper had, of course, no right to interfere. The facts in his return were sufficient, and the demurrer correctly overruled.

Per Curiam. — The judgment is affirmed with costs.  