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proceedings is to furnish an impartial and wholly disinterested tribunal before which such proceedings are instituted and carried forward. It is to carry out the constitutional guaranty that no man shall be deprived of life, liberty, or property without due process of law, that the chief safeguard of a disinterested judge, jury, referee, or arbitrator is so carefully provided by legislation and protected by judicial scrutiny. The most notorious criminal enjoys these safeguards to the extent that the magistrate who presides at his preliminary hearing must be disinterested. . . . Is it to be accepted that all these safeguards are to be disregarded and the precedents of long years set aside to support proceedings of the character we have considered, simply because the legislature has deemed it necessary to do so in aid of the tax assessing and collecting powers of the state? . . The taxing power is rightfully made efficient and protected with great jealousy, for it is necessary to the very life and maintenance of the sovereign, and very summary and sweeping enactments in support of this power have been held valid. But in the eager and hot pursuit of a citizen who wrongfully evades his just taxes, we must be careful not to graft upon the body of our judicial system proceedings so arbitrary and summary that they may hereafter be the basis and precedent for laws dangerous in the highest degree to the personal liberty and property rights of every citizen. A statute which confers upon an officer, chosen solely with reference to other duties, the power to conduct a quasi judicial proceeding, which in every stage of its progress is summary, and in its findings arbitrary in the highest degree, and which makes this officer, combining the functions of judge and jury, partial and biased, because directly. interested by reason of the very liberal reward which flows to him if he decides against the taxpayer, is a gigantic and perilous stride towards withdrawing from the citizen every principle of constitutional protection heretofore deemed secure and perpetual."

Nevertheless it was held in Tennessee Fertilizer Co. v. McFall (1913) 128 Tenn. 645, 163 S. W. 806, that, under the decision of the Federal Supreme Court in Hibben v. Smith (1903) 191 U. S. 310, 48 L. ed. 195, 24 Sup. Ct. Rep. 88, an owner of property which is assessed for local improvements is not denied due process of law because two members of the board of assessors were owners of lots abutting on the improvements and assessed therefor, on the ground that they were directly interested in the assessment, and that the statute providing for the collection of back taxes, and requiring the proceedings to be instituted and heard before the county trustee, was not in violation of the 14th Amendment because the trustee's compensation for services was dependent upon the amount adjudged to be due from the taxpayer in such proceedings.

And it was held, further, in the McFall Case, that the interest of the trustee in such proceedings before. him did not render the proceedings void, on the ground that they were not in accordance with "the law of the land," guaranteed by the Tennessee Constitution. The court declared that this point was decided by Grundy County v. Tennessee Coal, Iron & R. Co. (1895) 94 Tenn. 295, 29 S. W. 116, holding valid a tax assessment act which fixed the compensation of the tax assessor in proportion to the amount of taxes assessed, collected, and paid over, declaring that the difference between the two acts, which is that in the statute involved in the Grundy County Case the assessor was not empowered to proceed himself to collect the assessment levied, as was the trustee under the act in the McFall Case, furnished no ground upon which to base a substantial distinction, as the essential judicial feature of the power conferred under both acts was the determination of the value of the property.

But, as has been pointed out, it is no sufficient answer to statutory and judicial expositions of the maxim of the law that no man may lawfully sit as a judge in his own case, that in most cases the legislature has recog

nized disqualification of judges because of their interest, and provided that they should not act when so interested, but in the case of tax auditors it has empowered them to act, notwithstanding their interest, and this policy is necessary to make efficient the revenue laws of the state; for it is not within the power of the legislature to make any process which it may deem essential or necessary, even for the collection of public revenues, “due process of law," within the meaning of the Federal Constitution; and while the many ways that have been devised to evade and defeat collection of taxes have made it necessary to resort to extreme measures in enforcing their collection, nevertheless, where any exercise of judicial function is imposed upon any of the taxing officials, those judicial functions must be exercised in accordance with those sound maxims of the common law and principles of natural justice which have always

controlled judicial proceedings. Meyers v. Shields (1893; C. C.) 61 Fed. 713.

Of course the fact that a judge receives compensation for his services does not disqualify him, and he will not be disqualified to hold court in territory added to his district, by a statute which provides additional compensation for the added services required. White v. Hinton (1892) 3 Wyo. 753, 17 L.R.A. 66, 30 Pac. 953. And so, in Rex v. Clarkson (1910) 40 N. B. 363, it appeared that under a municipal ordinance the magistrate was entitled to receive a fixed sum upon the trial of every information for the violation of the prohibition laws irrespective of the result, that is to say, that he was to receive the amount whether there was a conviction or not; and it was held that he had, therefore, no interest in the result, and that he was not disqualified to hear such proceedings. G. S. G.

MILDRED JONES, by Next Friend, et al., Plffs. in Err.,

V.

JESSE H. NEWLON, Superintendent of Public Instruction of the City and County of Denver, et al.

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1. An order by school authorities that separate social functions shall be provided for the white and colored races, that colored pupils may request that provision be made for their social activities, and that the 'request will be granted if consistent with the general policies of the school and if the number of pupils making the request is sufficient to warrant the undertaking, violates a constitutional provision that no distinction or classification of pupils shall be made on account of race or color. [See annotation on this question beginning on page 1267.] Schools, § 52 - excluding negroes

from swimming pool and social functions.

2. Excluding colored pupils from the swimming pool and the entertainments, dances, and other social functions maintained by school officials under proper authority as part of the

activities of the school violates a constitutional provision that no distinction or classification of pupils shall be made on account of race or color.

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of school authorities excluding colored persons from the social activities of the school may maintain an action on behalf of themselves and others simi

larly affected to enjoin enforcement of the order, although they do not complain of exclusion from the same activities.

(Campbell and Adams, JJ., dissent.)

ERROR to the District Court for the City and County of Denver (Moore, J.) to review a judgment sustaining a demurrer to the complaint and dismissing an action brought to enjoin the enforcement of an order excluding colored persons from social activities of a school. Reversed. The facts are stated in the opinion of the court. Messrs. George Q. Richmond and George G. Ross for plaintiffs in error.

Messrs. F. W. Sanborn, Herbert M. Munroe, and Elmer D. Gwin for defendants in error.

rights, privileges, and benefits of the public schools of the city and county of Denver; that on or about March 27, 1924, the defendants issued, promulgated, entered, and en

Sheafor, J., delivered the opinion forced a certain order without of the court:

This suit was brought in the district court by Mildred Jones, a minor, by Daisy Jones, as next friend, Frances Louise Ross, a minor, by A. H. W. Ross, as next friend, and Doris Jenkins, a minor, by Nellie Jenkins, as next friend, as plaintiffs, against Jesse H. Newlon, et al., as defendants, to obtain an injunction. The plaintiffs claim that they sue for themselves and in behalf of all others similarly situated. They allege that Mildred Jones, a minor, was a pupil in and attending the Morey Junior High School, district No. 1, in the city and county of Denver; that Frances Louise Ross and Doris Jenkins, minors, were pupils in and attending the Manual Training High School in that district; that each and all of the plaintiffs are members of the negro race, commonly called colored people. The parents of the minors, and who represent them in this suit, allege that they are residents and citizens, school electors, and taxpayers of said county and school district. Plaintiffs further allege that defendant Newlon was the chief executive officer for the board of management of the public schools, and superintendent of the public schools for that district; that the other defendants constituted the board of education of that school district; that said minors were entitled to all the

right or authority, and contrary to § 8, art. 9 of the Constitution of this state. The order complained of reads:

"To Principals and Directors:

"Social Regulations.

"As a result of certain unpleasant incidents which have occurred within the past two or three years between the colored and white pupils, the board of education has approved the recommendation that in the future separate social functions be provided for the two races.

"The inauguration of this policy means that opportunity will be given to colored pupils to request that provision be made for their social activities. All such requests should be granted, if consistent with the general policies of the school, applicable to all students alike, and if the number of pupils making the request is sufficient to warrant the undertaking.

"Sincerely yours, "Jesse H. Newlon, Superintendent.'

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The complaint then alleges that, pursuant to that order, and as a result thereof, and during the month of September, "the plaintiff Mildred Jones, in response to a general notice and invitation given to and for the benefit of all of the pupils of said Morey Junior High School, did seek, with the other pupils, to enter into the swimming pool classes or course therein prescribed and given in said

(— Colo. —, 253 Pac. 386.)

school, and enjoy the privileges of said swimming pool upon the same basis and upon the same terms and conditions as were being required of and imposed upon the other pupils of said school, among others, being the requirement of a $2 fee for swimming pool privileges, and the requirement that the pupil obtain his or her own bathing suit and other swimming paraphernalia; that said plaintiff repeatedly made tender of said swimming pool fee, and did procure for herself all of the aforesaid swimming paraphernalia, and did repeatedly notify the principal of said school and the person in charge of said swimming pool and classes and the aforesaid swimming pool privileges, and the defendant Newlon, that she had procured the necessary articles and complied with the necessary requirements for the enjoyment of and obtaining of said swimming pool privileges, but that said plaintiff was by all of the aforesaid denied the privileges of the use of said swimming pool and classes, and had at all times been prevented from enjoying said swimming pool privileges and classes, although all other pupils, the white pupils, have been permitted to make use thereof, and that the said defendant and the aforesaid principal and the person in charge of the aforesaid swimming pool privileges and classes informed said plaintiff plaintiff that she would not be permitted the use of said swimming pool and classes at any time or under any circumstances, because of the fact and for the reason alone that said plaintiff is and was a negro or colored person, and that for said reason she has been deprived of the opportunity of taking the swimming lessons and entering into or upon the privileges and classes given or afforded the other pupils of said school."

The complaint then alleges, with reference to Frances Louise Ross and Doris Jenkins, that although they were members of and entitled to all the rights and privileges, uses, and benefits of the public schools

50 A.L.R.-80.

aforesaid at the Manual Training High School of which they were members, they have been, ever since the issuance and promulgation of the order, prevented from entering and participating in any and all socalled social functions of the said school, and denied the privileges of participating in and enjoying such social functions, which were at all times open, alike and equally, to all pupils of the school except the negro or colored pupils, including the plaintiffs; that under the threats and pain of the infliction of penalties, and perhaps expulsion, the plaintiffs Ross and Jenkins have not been permitted to enter into or upon the premises where entertainments, dances, and other social functions were being held after the promulgation of the order; that they were denied the privileges of enjoying and participating in common with other pupils who were permitted to enjoy and participate in such social functions; and that defendants have at all times, by the said order and said threats, deprived the plaintiffs of their rights as pupils of the public schools of the city and county of Denver, contrary to the terms and provisions of the Constitution of the United States, and the Constitution and laws of the state of Colorado.

That part of § 8, art. 9 of the Constitution, said to be violated by the superintendent's order, reads: Nor shall any distinction or classification of pupils be made on account of race or color."

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They further allege that the privileges and benefits which have been denied them are privileges, uses, and benefits provided by the board of education as a part of the courses and system of education in the school. The plaintiffs claim that the said order is a direct violation of the Constitution, and as a result thereof the colored pupils of the school have been, by the defendants, classified, segregated, and distinguished on account of their race and color, and have been deprived of

their rights of equal opportunities and privileges in the school.

They pray for an injunction enjoining and restraining the defendants from enforcing in any manner the said order, and from in any manner preventing the plaintiffs or any persons similarly situated from participating in or enjoying the privileges mentioned, or any privileges or opportunities or uses or benefits of the school, and from in any manner interfering with the plaintiff or others similarly situated in their rightful and lawful enjoyment and use of the school, and the system of education and the courses of the school.

The defendants demurred to the complaint on the grounds: (1) That it does not state facts sufficient; (2) misjoinder of parties plaintiff; and (3) that several causes of action have been improperly united. Demurrer sustained, and, plaintiffs electing to stand by their complaint, the action was dismissed. Plaintiffs prosecute this writ of error.

We shall treat this as an action brought by the plaintiffs for themselves and in behalf of all others similarly situated-that is, in behalf of all the colored children in the public schools of that districtto restrain the enforcement of the order, and that the complaint states but the one cause of action. This order, when analyzed, means the pronouncement by defendants that in the future separate social functions must be provided for the two races, a clear distinction and classification; that an opportunity would be given to colored pupils to request that provision be made for their social activities, another distinction and classification; that such requests might be granted, if the general policies of the school would warrant the undertaking, and provided that the number of pupils making the request should be sufficient, another clear distinction and classification.

The complaint unquestionably unquestionably states a cause of action to prevent

the general enforcement of the order, and it was Schools-un

constitutional

classification of

pupils-social

races.

error to sustain the demurrer. The order is clearly hostile functions of and contrary to that portion of § 8, art. 9, quoted. The demurrer admits that the order denies to the colored pupils rights, privileges, and benefits allowed the white pupils of the school.

If the establishment and supervision by the school authorities of the swimming pool and classes in Morey Junior High School and the "social activities" in Manual Training High School are beyond the authority of school officials, no cause of action was stated. As counsel on both sides argue this case upon the assumption that such activities in both schools were within the province of the authorities, we so assume, but do not decide, and upon that assumption hold that the demurrer should have

negroes from

and social

been overruled as to excluding each ground there- swimming pool of, because the at- functions. tempted classification is clearly prohibited by the Constitution. The wrong is done by the entry and enforcement of the enjoin enorder, made and enforced against each

Parties-suit to

forcement of school order.

of plaintiffs by defendants in the same capacity, injuring each of the plaintiffs in the same way, in violation of the same constitutional provision, and requiring for relief the same judgment, i. e., the abrogation of the order.

The judgment is reversed, with instructions to overrule the demur

rer.

Butler, J., not participating.
Campbell, J., dissenting:

To the complaint the defendants demurred, inter alia, that there was an improper union therein of several causes of action. If the complaint is subject to this objection, and the trial court held that it was, the judgment of dismissal under review is right. Plaintiffs did not

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