
    Thomas Lane v. Matthias W. Baker, Gideon Sphar, and John Ginn.
    Youth, of Negro, Indian, and white blood, but of “ more than one half white blood,” are entitled to the benefit of the common school fund.
    The cases of Polly Gray v. the State, 4 Ohio, 353 ; Williamson v. the school Directors, etc., Wright, 518; Jeffries v. Ankeny and others, 11 Ohio, 312, are affirmed.
    This was an Action on the case, from Greene county, against the defendants, as school directors.
    The plaintiff declared as follows:
    “ Thomas Lane complains of Matthias W. Baker, Gideon Sphar, and John Ginn, in a plea of trespass on the ease, for, that, whereas, heretofore, to wit, on the 25th day of January, 1841, at the county of Greene, aforesaid, a common school was, and had been, for along space 238] of time, to wit, for the *space of two months before that time, and for a long space of time, to wit, for the space of two months after-wards, taught in school district number one, in the township of Silver-creek, and county aforesaid, the teacher of which school was paid and compensated out of the common school fund of the State of Ohio, and funds appropriated for that purpose out of said fund, during all which time the said Matthias W. Baker, Gideon Sphar, and John Ginn were directors of said school, and school directors of said district, duly appointed, and acted as such; and that, during all the time aforesaid, and on the day and year aforesaid, the said Thomas Lane was a resident in said district, and a householder therein, and so resided during all' the time aforesaid ; and was the father of divers, to wit, three, white children, over the age of five years, and under the age of eighteen years, who resided with him in said district, to wit, John Eldridge Lane, and two others, who were, of right, entitled to the privileges of said school; and the said Thomas Lane, of right, should have been permitted and allowed to send to, and have said children taught and instructed in, said school, during all the time aforesaid, and the said Thomas Lane, in fact, saith that he did offer to send and place his said children at said school, to be taught and instructed, and did send said children to said school, and requested permission to have them taught and instructed, and permitted to remain in the same, of all of which the said directors had notice ; yet the said Matthias W. Baker, Gideon Sphar, and John Ginn, so being directors, as aforesaid, and well knowing the premises, and contriving and wrongfully intending to injure the said Thomas Lane, and to deprive him of his just rights and privileges in the premises, and to prevent him from educating, and having his children instructed and taught in such branches of education as are usually taught in such common schools, did, to wit, on the 25th day of January, 1841, aforesaid, and on divers other days, and times, before and since said day, and before the commencement of this suit, turn the said children of the said Thomas Lane out of said school, and cause said children to be kept out, excluded, and prevented from entering *said school, and being taught therein, and forbid, and [239 prevented the said Thomas Lane from sending his said children to said school, to wit, at the district aforesaid, in the county aforesaid, for and during the whole space of time aforesaid ; wherefore, the said Thoftas Lane saith that he is injured, and hath sustained damage, to the amount of two hundred dollars, and, therefore, he sues,” etc.
    The defendants plead not guilty.
    Upon the circuit, the jury returned the following special verdict;
    “ We, the jury, find, that Thomas Lane, and his family, were residents of school district, No. 1, in Silvercreek township, Greene county, and that one of his children, between the ages of four years and twenty years, was excluded from the enjoyment of the common school fund for said district, and was not permitted to attend the school in said district, by the defendants, who were the directors of said school district.
    
      
      “ We find said youth, so rejected, to be of negro, Indian and white blood, but of more than one-half white blood ; and, if the law be with the plaintiff, assess his damages at six cents.”
    The plaintiff moved for judgment upon the verdict, which motion was reserved for consideration in bank.
    A. Harlan, for plaintiff.
    The question presented in 'this case, is, whether the plaintiff is entitled to judgment, the jury having found that the plaintiff’s child; excluded from the school by the defendants, was of mixed blood, white, black, and Indian, but of more white blood than any and all others. The word white, as used in the common school law now in force, is found to be the same which has been used in all the former laws on the subject, and received a construction, and was fully defined, in the case of Gray v. The State, 4 Ohio, 253. The subject again came before the Supreme Court, on the circuit, in the case of Williams v. School Directors, Wright, 578, and the word “ white ” received the same construction as in the former ease.
    *Sinee these decisions were made, the Legislature passed the present school law, using the same word “ white,” in the same sense in which it was used in laws which existed at the time the above decisions were made, and from this we must infer that the legislature approved of the construction of the court; and I see no reason to change, until the Legislature change the language of the law.
    William Ellsberry, contra.
    The defendant make the following questions for the decision of the court:
    First: Can such an action be sustained against the school directors, for the exercise of an official act, in its nature judicial, and devolving upon them as an official duty, by the statute itself, which makes the discrimination.
    Second : Can a person of mixed blood, as in the present case, who is one shade nearer white than black, be legally construed to be white, within the meaning of the Legislature, where the term white youth is used as the qualification for admission.
    Third: Are the rights of the individual increased by the mixture of Indian blood, or, do the Indians, under the common school laws, stand upon the same footing with the negroes.
    I am aware that this subject has been several times before this court, incidentally and indirectly, and, perhaps, directly; but the question is not at rest as to either of the points now made. The subjeet being one of great importance to the peace and harmony of the community, and, in a large portion of the state, of great excitement, and intimately connected with the prosperity of the whole system of common schools in the state, I am induced, not only as the advocate of my client, but in accordance with my own views of the subject, to offer a few remarks, and, if possible, to contribute something to the settlement of the question involved. The term white, as applied to persons, has, from the foundation of our government, in all legislative enactments, been used in a strictly ^technical sense, and applied as ex- £241 pressive of the pure white race. Justice Kent, in his commentary on American law, (vol, 2, page 72,) takes this view of the term, as used in the acts of Congress for the naturalization of foreigners. The term white is used in a like sense in the constitution of Ohio and in the statute, on the subject of common schools, the statute providing for the education of white youth, which is, virtually, an exclusion of all others.
    The plaintiff in error rests his ease on the authority of the case of Gray v. The State of Ohio, 4 Ohio, 353, and the case of Williams v. School Directors, Wright, 578. The first case is not analogous; that question arose under the act prohibiting blacks and mulattoes from testifying in causes where a white person was a party ; and being an abridgement of liberty, was construed strictly. The ease in Wright’s Reports arose under the common school law, but it was a circuit decision, and was predicated on the authority of the case in the 4th vol. Ohio Reports, Polly Gray v. The State; but the cases are not analogous, and the case in Wright, 578, is, therefore, no authority in the present case.
    The school districts are bodies politic and corporate. Their affairs are managed by directors, who are, necessarily, vested with powers, judicial as well as ministerial. The statute provides for the admission, iritp their schools, of all white youth within the district between the age of four and twenty-one years. Now there are youth who are necessarily disqualified, either from not being white, or of the appropriate age. There must be some tribunal to determine. This tribunal is the school directors; and the act of determination is a judicial act, and of as high validity, and as binding on the parties whose rights are effected, as the decisions of this court; for, though acting in a subordinate capacity, or as an inferior court, their acts, whilst confined within their jurisdiction, are valid and binding ; and they are no more amenable for the exercise of their judgment than the courts of record.
    
      Indians are not citizens, neither can be. 20 Johns. 693. They have 242] no political rights. They are, also, *excluded by reason of color, as much as the negroes, from all participation in the common schools, though living within the districts, respectively. The courts of justice decide the laws as they find them, and leave to the Legislature the policy of enacting, if within the pale of the constitution.
   Lane, C. J.

This case depends upon the same principles with that of Jeffries v. Ankeny et al., 11 Ohio, 372.

It is an action on the case against school directors, for refusing to admit the plaintiff’s child into the district school. The jury found, by special verdict, that the youth, whose admission to school was forbidden, “ was of negro, Indian and white blood, but of more than half white blood.” The question is reserved, to determine if the plaintiff may take judgment on these facts.

A majority of the court find no cause to change the opinion they expressed in the case cited, in which they followed former decisions. Polly Gray v. The State, 4 Ohio, 353 ; Williamson v. The School Directors, Wright, 578 ; Jeffries v. Ankeny, 11 Ohio, 372 ; Thacker v. Hawk and others, Ibid. 376.

Judgment for plaintiff on the verdict.  