ex rel. Pitman, v. Tucker, 46 Ind. 355, where many of the cases are cited.

It is very plain and obvious to us, that by the supplemental act of May 13th, 1869, the legislature has provided for the education of the white and colored children of the State in separate schools, and the question presented for our decision is, whether such legislation is in conflict with the constitution of this State or the Constitution of the United States.

It is contended that the act in question is repugnant to section 23 of article 1, and section 1 of article 8, and they are: "Section 23. The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens." 1 G. & H. 33.

Section 1, article 8 (1 G. & H. 48), declares, that "knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government, it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide by law for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all."

It is important that we should settle in advance the rules by which we are to be guided in placing a construction the constitutional provisions above quoted.

upon

In The State v. Gibson, 36 Ind. 389, we held that it was settled by very high authority, that, in placing a construction upon a written constitution or any clause or part thereof, a court should look to the history of the times, and examine the state of things existing when the constitution, or any part thereof, was framed and adopted, to ascertain the old law, the mischief, and the remedy. The court should also look to the nature and objects of the particular powers, duties, and rights in question, with all the aids and lights of cotemporary history, and give to the words of each provision just such operation and force, consistent with their legitimate meaning, as will fairly secure the end proposed. Kendall v. The United

States, 12 Peters, 524; Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 539.

In the Slaughter-House Cases, 16 Wallace, 36, the same rules were laid down and illustrated with great force by reference to the history of the times and condition of things which brought about the recent amendments to the Constitution of the United States.

Judge COOLEY, in his great work on Constitutional Limitations, on page 54, says:

"A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable. A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the principles of the common law. Those beneficent maxims of the common law which guard person and property have grown and expanded until they mean vastly more to us than they did to our ancestors, and are more minute, particular, and pervading in their protections; and we may confidently look forward in the future to still further modifications in the direction of improvement. Public sentiment and action effect such changes, and the courts recognize them; but a court or legislature which should allow a change in public sentiment to influence it in giving construction to a written constitution not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty; and if its course could become a precedent, these instruments would be of little avail. The violence of public passion is quite as

likely to be in the direction of oppression as in any other; and the necessity for bills of rights in our fundamental laws lies mainly in the danger that the legislature will be influenced by temporary excitements and passions among the people to adopt oppressive enactments. What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it."

Again, the learned author says:

"The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced."

Another cardinal rule of construction laid down by this author is, that the whole instrument is to be examined in placing a construction upon any portion or clause thereof. He says:

"Nor is it lightly to be inferred that any portion of a written law is so ambiguous as to require extrinsic aid in its construction. Every such instrument is adopted as a whole, and a clause which, standing by itself, might seem of doubtful import, may yet be made plain by comparison with other clauses or portions of the same law. It is therefore a rule of construction, that the whole is to be examined with a view to arriving at the true intention of each part; and this Sir Edward Coke regards the most natural and genuine method of expounding a statute. If any section [of a law] be intricate, obscure, or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of another.' And in making this comparison it is not to be supposed that any words have been employed without occasion, or without intent that they should have effect as part of the law. The rule applicable here is, that effect is to be given, if possible, to the whole instrument, and to every sec

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tion and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and lean in favor of a construction which will render every word operative, rather than one which may make some idle and nugatory.

"This rule is especially applicable to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise where a court would be justifiable in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another, so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together."

In support of the above propositions, reference is made in the notes to the following authorities:

The People v. Morrell, 21 Wend. 563; Newell v. The People, 7 N. Y. 109; McKoan v. Devries, 3 Barb. 196; The People v. Blodgett, 13 Mich. 138; United States v. Fisher, 2 Cranch, 399; Bosley v. Mattingly, 14 B. Mon. 89; Sturges v. Crowninshield, 4 Wheat. 202; Schooner Paulina's Cargo v. United States, 7 Cranch, 60; Ogden y: Strong, 2 Paine C. C. 584; United States v. Ragsdale, Hemp. 497; Southwark Bank v. The Commonwealth, 26 Penn. St. 446; Ingalls v. Cole, 47 Me. 530; McCluskey v. Cromwell, 11 N. Y. 593; Furman v. City of New York, 5 Sandf. 16; The People v. The New York Central R. R. Co., 24 N. Y. 492; Bidwell v. Whitaker, 1 Mich. 479; Alexander v. Worthington, 5 Md. 471; Cantwell v. Owens, 14 Md. 215; Case v. Wildridge, 4 Ind. 51; Pitman v. Flint, 10 Pick. 504; Ludlow v. Johnson, 3 Ohio, 553; District Township v. The City of Dubuque,7 Iowa, 262; Pattison v. Board, etc., 13 Cal. 175; Spencer v. The State, 5 Ind. 41; Denn v. Reid, 10 Pet. 524; Greencas tle Township, etc., v. Black, 5 Ind. 569; Stowell v. Lord Zouch, Plow. 365; Broom Leg. Max. (5th Am. ed.) 551; Co. Lit.

381, a.; Attorney General v. Detroit, etc., Plank Road Co., 2 Mich. 138; The People v. Burns, 5 Mich. 114; Manly v. The State, 7 Md. 135; Parkinson v. The State, 14 Md. 184; The Belleville, etc., R. R. Co. v. Gregory, 15 Ill. 20; Ryegate v. Wardsboro, 30 Vt. 746; Brooks v. Mobile School Comm'rs, 31 Ala. 229; Den v. Dubois, 1 Harrison, 285; Den v. Schenck, 3 Halst. 34; Wolcott v. Wigton, 7 Ind. 44; The People v. Purdy, 2 Hill N.Y.36; Green v. Weller, 32 Miss. 650; Warren v. Shuman, 5 Texas, 441; Quick v. White Water Township, 7 Ind. 570; Gibbons v. Ogden, 9 Wheat. 188; Smith Const. Construc., secs. 502, 503; Sedgw. Stat. Law, 229, 233, 251, and 252.

An examination of the above authorities shows that they are in point, and fully support the doctrines announced.

It is essential to a correct interpretation of the above provisions of our constitution, in the light of the above rules of construction, that we should look to the history of the times and examine the condition of things existing prior to, and at the time of, the adoption and ratification of our present state constitution, and compare the sections in question with other portions and clauses of such constitution.

We will limit our inquiry into the political condition of the negroes in this State from the organization of our state government in 1816 down to the ratification of the thirteenth, fourteenth, and fifteenth amendments to the Constitution of the United States, and incidentally to their status in other states of the Union.

Prior to the act of May 13th, 1869, making taxation for common school purposes uniform, and providing for the education of the colored children of the State, 3 Ind. Stat. 472, no provision was made for their education in this State. As a race, their condition was one of marked and settled inferiority before the law, being reduced strictly to the enjoyment of the three primary rights only, and for a large portion of time legally prccluded from their full exercise, viz., the right of personal security, the right of personal liberty, and the right of private property. But the power of exercising these rights was practically limited in degree as compared with the exercise and