
    Taylor, Appellant, v. Entriken.
    
      School law — Mandamus—Distinction, on account of color — Act of June 8, 1881, P. L. 76.
    On the trial of an issue of fact in mandamus proceedings under the Act of June 8, 1881, P. L. 76, forbidding in schools any distinction on account of color, where the testimony is conflicting as to whether such a distinction was made, the case is for the jury.
    Argued Feb. 7, 1906.
    Appeal, No. 22, Jan. T., 1906, by plaintiff, from judgment of C. P. Chester Co., April T., 1904, No. 54, on verdict for defendant in case of John Taylor v. D. W. Entriken et al., School Directors of the Borough of Kennett Square, and W. E. Dengler, Principal.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Mandamus proceedings under the Act of June 8,1881, P. L. 76. Before Butler, J.
    From the record it appeared that the action of the court below began by a petition for a mandamus asking that said defendants be commanded to put the four children of the plaintiff in the same room with white children and averred as the basis for said action, that said children were not so assigned by reason of their race and color.
    The answer denied this averment, and asserted that the said children were assigned to the room for which their capacities, qualifications and attainments best fitted them.
    The Act of June 8, 1881, P. L. 76, sec. 1, provides that: “ It shall be unlawful for any school director, superintendent or teacher, to make any distinction whatever on account of, or by reason of, the race or color of any pupil or scholar, who may be in attendance upon, or seeking admission to, any public or common school maintained wholly or in part under the school laws of this commonwealth.”
    The evidence was conflicting as to whether any distinction was made.
    The court refused binding instructions for plaintiff.
    Verdict and judgment for defendants. Plaintiff appealed,
    
      
      Error assigned was in refusing binding instructions for plaintiff.
    
      W. S. Harris, for appellant.
    
      Alfred P. Reid, for appellee.
    March 5, 1906:
   Per Curiam,

Plaintiff claimed that his children were excluded from one schoolroom and assigned to another on account of their color. The defense was that the school had been properly graded by the board and the plaintiff’s children assigned to the classroom for which their capacities and attainments fitted them. The judge left the question to the jury with clear instructions that under the Act of 1881, P. L, 76, any distinction between pupils on account of color was unlawful and if the jury believed such distinction was made here they should find for the plaintiff. It was a plain issue of fact in which the evidence was conflicting and the judge could not have taken it from the jury.

Judgment affirmed.  