
    Wytheville
    Eubank v. Boughton.
    July 5, 1900.
    Absent, Riely, J.
    
    1. Mandamus—Public Officers—Discretion.—The writ of mandamus is the appropriate remedy for compelling the performance, by a public officer, of a duty Which is either imposed upon him by law, or necessarily ¡results from the office which he holds. It does not lie in any matter requiring official judgment, or resting in sound discretion. It may require an inferior officer to act, but the character of the action cannot be affected.
    2. School Tbustees—Duties—White and Colored Children—Decision as to Color—Appeal—Mandamus.—It is the duty of school boards to assign white children to white schools, and colored children to colored ¡schools, but whether a child is white or colored is a fact to be determined ¡by the board, ¡and involves the exercise of a judicial discretion on the part of the board which the courts cannot control. If the party aggrieved is dissatisfied with ¡the action of the board, an appeal is allowed him to the county superintendent of schools, and, this being an adequate remedy, mandamus will not lie.
    Error to a judgment of the Circuit Court of King and Queen county, rendered March 1, 1900, on an application for a writ of mandamus, wherein the defendant in error was the petitioner, and the plaintiffs in error were the respondents.
    
      Reversed.
    
    The opinion states the case.
    
      
      Claggett B. Jones, for the plaintiffs in error.
    
      Isaac Diggs, for the defendant in error.
    
      
       Judge Riely was prevented by sickness from attending this term.
    
   Keith, P.,

delivered the opinion of the court.

George Boughton filed his petition in the Circuit Court of King and Queen county, praying for a mandamus upon Eubank, Batane, and Deshazo, District School Trustees for Stevensville District, in said county, in which he states that he is a voter, a tax-payer, and head of a family, with two children between the ages of five and twenty years, who reside with him in the district and county aforesaid; that he and his wife and children are white, and his children are entitled to attend the public free school for white children, but that they have been refused admission by the trustees, and he therefore prays for a mandamus, directed to the trustees above named, to compel them to receive Ms son into the school set apart for white children. The trustees i answered, saying that, in the exercise of their discretion, they. ! had refused to grant the request of petitioner because they were informed and believed that the child of petitioner is a negro', and to permit him to attend the school for white children would . not only materially interfere with its prosperity and efficiency, j_but, in their judgment, would destroy it.

Bpon the issue thus made, testimony was taken, and the Circuit Court, being of opinion that it established the fact that petitioner’s son “has not one-fourth of negro blood in Mm,” and is, therefore, a wMte person, awarded the writ of mandamus. This judgment is 'before us upon a writ of error.

The writ of mandamus is the appropriate means of compelling the performance, by a public officer, of a duty which is either imposed upon him by some express enactment, or necessarily results from the office wMch he holds. It does not lie in any matter requiring official judgment, or resting in sound discretion, for in such a case the court can do no more than compel the officer to exercise his function according to some discretion -when he has refused or neglected to act at all. By it, an inferior court may be directed to hear a case, but the decision to be rendered cannot be affected. Spelling on Extra. Belief, sections 1432, 1433; Thurston v. Hudgins, 93 Va. at p. 784.

Section 1492 of the Code provides, among other things, “that white and colored persons shall not be taught in the same schools, but in separate schools, under the same' general regulations as to management, usefulness, and efficiency.”

Section 1466 makes it one of the duties of the boards of school trustees “to explain and enforce the school laws and regulations.” When, therefore, application was made to the Board to admit to a white school the son of petitioner, it became at once the duty of the Board to ascertain before granting or refusing the request whether the child of petitioner was a white person or a negro—that is to say, whether he had more than one-fourth of negro blood, for that is the test established by section 49 of the Code, which declares that “every person having one-fourth or more of negro blood shall be deemed a colored person.”

It is the duty of the Board to assign white children to schools for white children, and it is none the less their duty to assign colored children to the schools for colored children. When the ■question arises as to the color of a particular applicant, the Board must take evidence, and make such disposition of the matter as shall seem right. Here, then, is a duty which calls for the exercise of judicial discretion. It is true that, when the fact is ascertained, the duty is plain. When the status of the applicant is fixed by the judgment upon the evidence, the law itself assigns him to the proper school. The law has seen fit to confide the determination of the question to a board of school trustees, and the discharge of the duty thus imposed iipon the board involves, as we have seen, the exercise of a judicial discretion, and the court cannot control its exercise. But the decision of the board is not final. If petitioner felt himself aggrieved by its action, he had, .under the eighth sub-division of section 1439 of the Code, a right of appeal to the County Superintendent of Schools, who is given jurisdiction to “decide finally all appeals or complaints, concerning the acts of any persons connected with the school system within his bounds, unless the matters in question are properly referable to other authorities.” So there are two grounds upon which the judgment complained of must be reversed. It-undertakes to control the official judgment of the Board of Trustees in the exercise of a discretionary power specially confided to them by the statute, and the petitioner is-given a remedy by appeal to the County Superintendent.

“Where a party aggrieved by the action of a board of school directors has an adequate remedy by appeal to the county superintendent, he is not entitled to a writ of mandamus.” Spelling on Extra. Belief, section 1445; Marshall v. Sloan, 35 Iowa, 445; Barnett v. Directors of Ind. Dis., 73 Iowa, at p. 134; Mitchell et als. v. Witt, Judge, ante-page 459.

Eor the foregoing reasons, vye are of opinion that the judgment of the Circuit Court must-be reversed, with costs.

ReversedL  